Microsoft again asks Supreme Court for review

In a filing with the U.S. Supreme Court Wednesday, Microsoft continued its strike against the trial court judge who first ruled it an illegal monopoly last year.

The software company again asked the nation's highest court to review its landmark antitrust case against the Department of Justice and 18 states, on grounds that District Court Judge Thomas Penfield Jackson should have been disqualified from hearing the trial case due to comments he made to the press before issuing his ruling in June 2000. Microsoft first asked for its case to be reviewed by the Supreme Court on August 7.

Wednesday's filing, which is an incremental step in the review process, asks the Supreme Court to immediately review a ruling by the U.S. Court of Appeals for the District of Columbia that upheld Jackson's ruling that Microsoft used its monopoly power in the desktop operating system market to squash competition in other markets.

Jackson was admonished by the Appeals Court in its July 28 ruling for comments he made to reporters from the New Yorker magazine and daily news publications. The panel of seven appellate judges said that Jackson violated the judicial code of conduct in his actions because he appeared to show a bias. In that ruling, the Appeals Court overturned Jackson's remedy, which included splitting the company into two, and sent it back to a lower court under a new judge for a new remedy hearing.

Microsoft argues, however, that Jackson should have been disqualified at the time he violated the code of conduct, a move that would have vacated the district court's findings of fact and conclusions of law all together.

"If the (Supreme) Court ultimately concludes that the findings must be vacated, any actions taken on remand . . . would be invalid," Microsoft wrote.

The government has said that Microsoft's argument holds no weight because the Appeals Court "discerned no actual bias on the part of the trial judge." Rather, the Appeals Court disqualified Jackson from rehearing the remedy case because of his "appearance of partiality."

Microsoft's latest filing contains eight arguments that counter the points outlined in the Justice Department's Aug. 31 brief calling for the Supreme Court not to hear the case.

"Microsoft should not be disadvantaged because the district judge (Jackson) deliberately concealed his misconduct," the company wrote. This court should not permit the findings of fact to stand simply because a retrial would involve substantial cost."

As Microsoft awaits a decision by the Supreme Court on whether it will review the case, the antitrust trial continues this month in a new trial court. District Judge Colleen Kollar-Kotelly was chosen to hear the case and has set an initial hearing date of September 21. Microsoft and the government will also file reports with the court by the end of the week.

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