Microsoft Judge Eager to Send Case to Appeal

SAN FRANCISCO (04/05/2000) - Now that U.S. District Judge Thomas Penfield Jackson has found Microsoft Corp. guilty of numerous violations of federal antitrust law, he's eager to have the U.S. Supreme Court grade his homework.

The judge told attorneys for both sides in the case yesterday that he is "very much desirous of having an appellate panel take a look at [his] work product so far and would prefer if we were able to conclude the remedy phase on a fast track," according to the transcript of a scheduling conference. Jackson told the attorneys for Microsoft, the Justice Department, 19 states and the District of Columbia that he wants to wrap up the "remedy phase," in which he decides how to punish Microsoft, within 60 days. If that's not possible, Jackson said, he will seek to split the case in half, allowing Microsoft to appeal his April 3 "conclusions of law" immediately before the Supreme Court, even before he settles upon a remedy.

"I would be remiss if I didn't tell you that I will be inviting from the government a motion ... to provide for direct review in the Supreme Court," Jackson says.

Observers see Jackson's Supreme Court strategy as a spur to make Microsoft move quickly during the remedy phase. But neither Jackson nor attorneys involved with the case nor several legal experts interviewed are certain that the Supreme Court would agree to take an appeal in pieces, if indeed it would accept an appeal at all. In any event, legal experts say, a 60-day schedule would be unusually fast for an antitrust remedy phase.

Stephen Houck, the former head of the New York state attorney general's antitrust division, led the case for the 19 states and the District until recently. Houck said he expects the federal government's attorneys to go along with Jackson's suggestion that they request an expedited appeal to the Supreme Court. "They would have considered it before, but they are almost certain to take this up now with the judge's invitation," Houck says.

Houck, now with the New York firm Reboul, MacMurray, Hewitt, Maynard & Kristol, said the archaic provision is seldom invoked. "The standard is that it was of great public importance to the administration of justice," he says. "It's an option only to the U.S. government. That's the only party that can avail itself of this provision."

The government invoked the law twice in 1983, in connection with its antitrust battle with AT&T - but only after U.S. District Judge Harold Greene ordered the company to break itself up.

Houck expressed doubt that the court would be able to split the case in two and appeal directly to the Supreme Court before the remedy phase. "I think that's highly unlikely," he says. "Technically, the judge cannot do that because the government is a plaintiff. He had in mind [Supreme Court] appeal before his remedies are linked. None of the parties favor that."

The government's lead trial counsel, David Boies, also disputes Jackson's reading of the relevant federal law, which is known as the Expediting Act.

Boies said there is a "severe question" as to whether Jackson could split the case in half under that law. John Warden, the Sullivan and Cromwell attorney who serves as Microsoft's lead trial counsel, agreed with Boies.

Jackson then pitched an alternate plan - sending his April 3 ruling immediately to the U.S. Court of Appeals for the D.C. Circuit instead of waiting until he decides a remedy.

"My transcendent objective is to get this thing before an appellate tribunal - one or another - as quickly as possible because I don't want to disrupt the economy or waste any more of your or my time on a remedy if it's going to come back here," Jackson says.

Warden and Boies, apparently misunderstanding Jackson's description of an immediate appeal to the U.S. Court of Appeals as an "alternate" plan to an immediate Supreme Court appeal, said the Expediting Act's provision against splitting the case would preclude Jackson's alternate strategy.

During the case, Jackson has often conducted such private meetings off the record, but the font of leaks from parties in the case during supposedly confidential settlement talks has persuaded him to abandon secrecy. The judge said that both he and Chicago appellate Judge Richard Posner, who mediated the settlement talks for more than four months at Jackson's behest, are "distressed at the misinformation and the leakage that has occurred, despite everybody's expressed intention to maintain strict confidentiality, and so I believe the best prophylaxis is to have it all transcribed and release it on the public record."

As a first step, Jackson asked both sides to submit publicly the final offers made before settlement talks collapsed last Saturday. Boies and Warden were reluctant to submit the offers, however, saying the offers went far beyond whatever remedy either side might propose in court. Upon hearing that, Jackson offered to let Boies and Warden file the offers secretly.

The parties in the case met this morning in Jackson's chambers to continue hashing out the rules for the remedy phase, even as Microsoft Chairman Bill Gates met secretly with federal lawmakers in the Capitol building, just up the street from the federal courthouse. Gates will appear this afternoon at the White House, alongside President Bill Clinton and Federal Reserve Chairman Alan Greenspan, to talk about technology issues, including the digital divide.