Microsoft asks highest court to review case

Microsoft Corp. on Tuesday asked the U.S. Supreme Court to review an appeals court ruling that it illegally used its monopoly power in the market for PC operating systems to harm rivals.

The company argued in court papers that the U.S. Court of Appeals for the District of Columbia should have thrown out all of District Court Judge Thomas Penfield Jackson’s findings and proposed remedies because of comments the judge made to the press while he was trying the case.

In addition to its filing with the country’s highest court, Microsoft asked the Appeals Court to hold off on sending the case back to the district court level until the Supreme Court has a chance to decide on whether it will hear the case. A new trial court was expected to revisit the case as early as the end of this week to begin work on deciding new remedies to impose on Microsoft; the Supreme Court would be unlikely to hear the case until its October term begins.

“I don’t think the Supreme Court is going to touch the findings of fact,” said Bob Schneider, an attorney at the Chapman and Cutler law firm in Chicago. “I wouldn’t give this much more than a 20 per cent chance of being accepted by the Supreme Court. Probably even less.”

If the high court did agree to hear the case, “it would be a slap in the face for the D.C. (appeals) court,” said Emmett Stanton, an attorney at the law firm Fenwick & West LLP. That is unlikely, however, because the panel of seven appellate judges ruled unanimously in its decision.

“The Supreme Court rarely grants review of unanimous … decisions from the courts of appeal,” Stanton added.

Dana Hayter, another attorney with Fenwick & West and a former antitrust lawyer with the U.S. Department of Justice, said the Court of Appeals is also unlikely to react in favor of Microsoft’s request to “stay,” or postpone, the case from going to the trial court.

“The main benefit of a stay for Microsoft would be a delay in the remedy hearings,” Hayter said. “I think the (Appeals Court) is going to view that as very transparent.”

In its ruling on June 28, the Appeals Court admonished Jackson for violating legal codes of conduct when speaking to reporters from the New York Times and The New Yorker magazine about the case. At the same time, the Appeals Court largely upheld the lower court’s finding that Microsoft used its monopoly power illegally to squelch competitors. It said Jackson should be removed from the case and recommended it be reheard by a different judge.

“While acknowledging that the district judge began his secret discussions with reporters months before he issued his findings of fact and conclusions of law, the court of appeals did not vacate those rulings,” Microsoft wrote in its Supreme Court filing.

Microsoft argued in its filing that Jackson should have been removed from the case as early as September 1999, when he was first known to have made comments to the press. If that were the case, Microsoft said Jackson’s findings of fact and conclusions of law – which included Microsoft being branded an illegal monopoly – should be vacated.

“What Microsoft is asking the Supreme Court to determine is that Jackson’s misconduct fatally infects the entire trial proceedings,” Stanton said.

The Redmond, Wash. software maker said it also could ask the Supreme Court to review a number of issues, including the appellate court’s conclusion that Microsoft’s exclusive agreements with Internet access providers violated the Sherman Antitrust Act, or its ruling that Microsoft’s license agreements restricting the way computer makers can package Microsoft’s software violated antitrust law.

Microsoft has since eased up on those restrictions, allowing PC makers more flexibility for how they configure the Windows desktop.

The Appeals Court last week denied a request by Microsoft to reconsider the issue of whether “commingling” its browser software with Windows was illegal. The court also denied a request by the U.S. Department of Justice and other plaintiffs in the landmark antitrust case to speed its transition to a lower court.

Much of the legal wrangling by the U.S. government points to an attempt to put pressure on the release of Microsoft’s new operating system, Windows XP, which is planned for release on Oct. 25, according to industry watchers. Microsoft has countered that with its own attempts to slow the legal process.

“I believe this is a tactic to delay any possible court action to prevent XP’s release,” Schneider said.

Microsoft in Canada can be reached at

(Douglas F Gray of the IDG News Service’s San Francisco bureau contributed to this report.)

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