DOJ hires a new anti-Microsoft gun

The Justice Department has tapped Philip Beck, a Chicago trial lawyer, to be its new field general in the government’s antitrust battle with Microsoft. The move is a sign that the Bush administration is girding itself to take up the more-than-three-year-old legal fight against the software giant in a new courtroom round.

Separately, Microsoft told a federal appeals court that it might ask the U.S. Supreme Court to review a June 28 ruling. In that ruling, the U.S. Court of Appeals for the District of Columbia Circuit affirmed that Microsoft had illegally maintained a monopoly market share in Intel-compatible PC operating systems. The appeals court vacated a previously ordered breakup of the company and remanded the case to a district court here for further proceedings on a remedy.

Beck, a founding partner at Barlit, Beck, Herman, Palenchar & Scott, will advise the government side and take charge of courtroom proceedings much as did David Boies, who worked for the government on the case until last year.

“Phil Beck is an extraordinarily talented and highly regarded trial attorney,” said Charles James, the Justice Department’s antitrust chief, in a statement. “His extensive litigation experience and ability to deal with complex issues makes him a perfect choice to lead the litigation team as the case moves back to the district court.”

Beck said he was “pleased and honored to be asked to assist the Justice Department.” He declined to comment on the merits of the case or the prospects for a settlement, saying he is just beginning to analyze the case record.

On July 13, the government asked the appellate court to send the case back to the district court immediately. Microsoft asked the appellate court on July 18 to reconsider its ruling that the company had illegally commingled Web browser software code into Windows to stifle competition. The government has until Aug. 3 to respond to Microsoft’s request.

On Friday, Microsoft asked the appeals court not to send the case back to the district court until after the appeals court deals with the company’s July 18 petition and the government’s response to it. The company’s lawyers signaled that Microsoft is considering a petition to the Supreme Court to review the appeals court’s June 28 ruling. Microsoft said Friday that if it decides to petition the high court, it would move to have the appeals court not send the case back to the district court until after the Supreme Court petition is filed.

Both sides have 90 days from the June 28 ruling to ask for a review by the Supreme Court. Microsoft’s recent moves, which are at odds with its declarations of victory after the June 28 ruling, could serve as delaying tactics to pave the way for the upcoming launch of its Windows XP operating system without legal hindrance.

Both Boies and Beck were involved in the historic Florida recount in last year’s U.S. presidential election. Boies represented Al Gore and Beck represented George W. Bush before Florida Circuit Court Judge N. Sanders Sauls.

Beck is also representing the Canadian government in a case against R.J. Reynolds. Beck’s past clients include General Motors, Illinois Bell and Echostar. Beck clerked on the D.C. circuit appeals court in the 1970s.

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