Microsoft Defends Appeals Court Approach

SAN FRANCISCO (06/15/2000) - In court papers filed Thursday, Microsoft Corp. argued that it was entitled to ask a U.S. appeals court to consider deferring restrictions on its business practices pending the outcome of its appeal in the antitrust case brought against it by the U.S government.

The filing is the latest volley in a battle of briefs between Microsoft and the U.S. Department of Justice (DOJ), as the two sides lock horns over which court is the most appropriate venue to hear the software maker's appeal in the case.

Microsoft Tuesday filed its notice of appeals with the U.S. Court of Appeals for the District of Columbia, and at the same time asked the appeals court to stay all provisions of District Court Judge Thomas Penfield Jackson's final verdict pending the final outcome of its appeal.

Judge Jackson's verdict called for a raft of restrictions on Microsoft's business conduct that will take effect 90 days from the June 7 ruling. He also ordered that the software maker be broken in two parts. That measure will be deferred until the appeals process is complete, although Microsoft must submit a plan for the breakup about four months from now.

On Wednesday, the U.S. Department of Justice shot back at Microsoft, calling its approach to the appeals court "premature." The appeals court should not consider Microsoft's request for a stay until Judge Jackson, who tried the case, has issued his own ruling on the matter, the DOJ said.

The judge could rule any day now on Microsoft's motion for a stay. However, even Microsoft in its court filing Thursday conceded that a favorable ruling from Judge Jackson is "highly improbable," given the tone of his verdict in the case.

The DOJ also argued that the appeals court shouldn't consider Microsoft's case until the venue for the software maker's appeal has been determined.

The U.S. Court of Appeals has signalled its enthusiasm to hear Microsoft's appeal, citing the "exceptional importance" of the case. However, the DOJ has asked Judge Jackson to send the case straight to the Supreme Court, which will decide for itself whether to hear it.

The spat over which court hears Microsoft's appeal may appear to be a side issue, but legal observers have said it may be critical to the final outcome in the case.

Microsoft wants to present its appeal to the U.S. Court of Appeals, which has sided with the software maker in at least one previous issue related to the case. The DOJ, which argues that a quick resolution to the case is in the national interest, is pushing to have the case heard by the Supreme Court.

Judge Jackson is expected to rule next week on the DOJ's request to send the case directly to the Supreme Court. Microsoft has said it will file papers with the court responding to that motion by Monday.

Microsoft, in Redmond, Washington, can be reached at +1-425-882-8080 or at http://www.microsoft.com/. The U.S. Department of Justice, in Washington, D.C., can be reached on the Internet at http://www.usdoj.gov/.

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