DOJ Seeks to Dismiss MS 'Premature' Appeal

SAN FRANCISCO (06/14/2000) - Microsoft Corp. and the U.S. government continued their legal maneuvering Wednesday as the two sides argued over which court has the right to consider key elements of Microsoft's antitrust appeal.

In the latest move, government lawyers Wednesday argued that Microsoft was "premature" in asking a U.S. appeals court to decide whether remedies imposed by U.S. District Court Judge Thomas Penfield Jackson should be stayed pending the outcome of Microsoft's appeal.

Correct procedure requires that Judge Jackson be given the chance to rule on Microsoft's motion to stay the remedies before the matter goes before the appeals court judges, the government argued in its motion filed Wednesday with the U.S. Court of Appeals for the District of Columbia. Judge Jackson hasn't ruled on Microsoft's motion yet, although he is expected to do so any day now.

The government asked the appeals court to turn down Microsoft's request for permission to file what it dubbed the software vendor's "premature" stay motion. Failing that, the appeals court should defer consideration of the motion until Judge Jackson has acted upon it.

Having found Microsoft to be a predatory monopolist, the judge ruled on June 7 that the company should be broken in two parts as a way to redress its anticompetitive behavior. He ordered that the breakup be stayed pending the final outcome of an appeal, which is expected to take months, if not years.

In the meantime, Judge Jackson ordered Microsoft to comply with a raft of conduct restrictions that would take effect 90 days from his June 7 final verdict. He also ordered Microsoft to submit a plan for its breakup to the court within four months.

In the past few days, both Microsoft's and the government's lawyers have been duelling over which court will consider Microsoft's various motions and appeals.

Microsoft is keen to have its case heard by the appeals court, which it says is the appropriate venue to address what it claims were errors made by Judge Jackson during the course of its antitrust trial. The appeals court has sided with Microsoft in the past on at least one issue related to the case, and may offer a favorable venue for the software maker to make its appeal, legal observers have said.

Government lawyers, meanwhile, appear to be trying to keep the case away from the appeals court. On Tuesday, they asked Judge Jackson to recommend the case for immediate review by the U.S. Supreme Court, arguing that the case is critical to the economy and the high-tech industry and needs to be resolved quickly.

Earlier Wednesday, Microsoft said it would reply in four business days to a government motion seeking to have the case sent directly to the Supreme Court.

[See "Microsoft to Reply to DOJ's Supreme Court Request," June 14].

Microsoft, in Redmond, Washington, can be reached at +1-425-882-8080 or at The U.S. Department of Justice, in Washington, D.C., can be reached on the Internet at

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