Judge Kicks Microsoft Case to Supreme Court

WASHINGTON (06/23/2000) - The Microsoft Corp. antitrust case this week was kicked upstairs, all the way to the U.S. Supreme Court.

And much to the relief of Microsoft, U.S. District Court Judge Thomas Penfield Jackson also put a hold on implementation of his entire June 7 final judgment, including the breakup plan and the interim conduct restrictions that otherwise would have taken effect Sept. 5.

Now the question is whether the Supreme Court will agree to hear the appeal or simply turn around and send it back to the U.S. Court of Appeals.

The next step is an accelerated schedule of briefing meetings in late July and August. Microsoft has until July 26 to lay out its opposition to Jackson's ruling.

The Department of Justice and the states would have until Aug. 15 to reply, followed by another Microsoft response due to be filed by Aug. 22.

If the high court decides to hear the case, it is due to begin its 2000 to 2001 session on the first Monday in October and could make a final ruling by June 2001.

"It's doubtful at best that the Supreme Court will take the immediate appeal," said Hillard Sterling, an attorney at Gordon & Glickson LLC in Chicago. He said the high court typically prefers that the midlevel appeals court clarify the issues beforehand.

The DOJ and 19 states had urged Jackson to approve the highly unusual fast-track appeal to the highest court, arguing that it would speed up resolution of the case, since "an appeal to the Supreme Court is . . . inevitable" anyway.

Jackson consented in a brief order invoking the little-used Expediting Act, which provides for direct Supreme Court review of antitrust cases "of general public importance in the administration of justice."

Microsoft officials said they were "very pleased" that the conduct remedies - whichaffect its licensing and developer relations - were placed on hold but preferred sending the case to the Court of Appeals, which ruled in favor of the software company in arelated matter in 1998.

"This action will allow the appeal to go forward without unnecessary disruption to consumers and the high-tech industry, and we are confident that the final judgment will be reversed on appeal," said Microsoft spokesman Mark Murray.

Conversely, the DOJ was pleased with the move to the Supreme Court but disappointed with the remedies delay. "The sooner a meaningful remedy is in place, the better it will be for consumers and the marketplace," the agency said in a statement.

Microsoft competitors - such as those represented by the Computer & Communications Industry Association (CCIA) here - are also concerned about the delay, because it means Microsoft will be unfettered in its product plans and business practices until all legal appeals are exhausted.

Ed Black, president of the CCIA, said the Supreme Court justices need to act as soon as possible because breaking up Microsoft is "the only effective method of terminating [Microsoft's] illegal behavior" and restoring competition.

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