Judge rebuked during Microsoft appeal

The judge who found Microsoft Corp. guilty of antitrust violations and ordered the company split in two was on trial as much as the software giant in last week’s appeals hearings. As a result, many observers now believe Microsoft likely will win its appeal.

In the course of scrutinizing the federal government’s case against the Redmond, Wash.-based company, judges on the U.S. Court of Appeals for the District of Columbia sharply criticized U.S. District Judge Thomas Penfield Jackson for speaking with reporters during the trial, opening the door for Microsoft’s appeal to be upheld, at least in part.

“The likely scenario is that [the ruling of] Judge Jackson will be reversed, in which case the Bush administration probably will decline the states’ invitation to appeal to the Supreme Court,” said Hillard Sterling, an antitrust expert at the Chicago firm of Gordon & Glickson. “A Supreme Court appeal still would occur because the states will carry the flag up the appellate ladder.”

William Kovacic, a visiting professor of antitrust law at George Washington University in Washington, agreed that the U.S. Department of Justice lost ground in last week’s two-day hearing.

Kovacic said the government’s “tying” claim “might be highly vulnerable,” and he said the court had a “number of doubting questions” about the government’s restructuring plans, indicating that the appellate court’s decision, which is expected by June, will not support a breakup of the company.

“This was not a happy day for the government,” Kovacic said after the arguments concluded. “There was very little in there that was good for them.”

But Kovacic added that it would be difficult for the appeals court to simply brush aside all of Jackson’s findings.

The seven-judge appeals panel voiced concerns over statements made by Jackson, and Microsoft lawyers argued that the judge exhibited bias against the company in subsequent press interviews.

Microsoft attorney Richard Urowsky called Jackson’s statements derogatory and said quotes attributed to the judge, including the statement, “I’m not a great fan of integration,” showed bias, indicating Jackson should have recused himself.

The government built its case on Microsoft’s integration of Internet Explorer with its Windows operating system, saying the combination of the two was an illegal “tying” because Microsoft attempted to preserve its monopoly in desktop OSes in violation of U.S. antitrust law. Jackson ultimately agreed with the government, issuing his conclusions of law in April, which said Microsoft had violated antitrust law.

Urowsky told the appellate judges that Jackson gave interviews to numerous reporters about the case. Among the three judges that sharply questioned government attorney John Roberts about Jackson’s conduct, Chief Justice Harry Edwards described the comments as “far from anything benign.”

Margret Johnston is a Washington correspondent for IDG News Service, an InfoWorld affiliate.

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