Microsoft Asks to Have Judge Removed From Its Antitrust Case

From Bloomberg Business News

Microsoft Corp., in a rare tactic, has asked an appeals court to remove U.S. District Judge Stanley Sporkin from consideration of its federal antitrust settlement, claiming the jurist is biased against the software industry giant.

In its legal brief appealing Sporkin's rejection last month of Microsoft's negotiated deal with the Justice Department, the company said the Washington federal judge "severely prejudiced" the case by considering a range of allegations outside the government's charges and by unfairly criticizing Microsoft from the bench.

"Judge Sporkin has demonstrated personal bias against Microsoft that he acquired by considering information obtained outside the (courtroom)," Microsoft attorneys argued.

"The gratuitous and unsupported assertions by the District Court . . . would lead any reasonable observer to conclude that--despite having heard no testimony and having reviewed no admissible evidence--Judge Sporkin predetermined the merits of this case based on 'independent research' he did outside the courthouse," Microsoft said in its legal filing.

The move to replace Sporkin came as Microsoft and the Justice Department filed their initial briefs with a federal appeals court in Washington. Both are seeking to overturn the judge's decision to reject the terms of a negotiated settlement to the government's four-year antitrust investigation of the Redmond, Wash.-based software firm.

In its brief, the Justice Department argued that Sporkin "vastly exceeded" his authority by questioning the kind of case prosecutors decided to bring. Allowing a judge to second-guess the government's charges, Justice said, would "gravely damage" antitrust enforcement by making companies unwilling to negotiate out-of-court settlements.

The attempt to remove Sporkin is not without risk, antitrust experts said. "It's very unusual, although I guess it isn't surprising," said Lawrence Sullivan, an antitrust expert at the Southwestern University School of Law in Los Angeles.

"If you were Microsoft, or, for that matter, if you were the Department of Justice, you'd just as soon not be before Sporkin if this case goes back," Sullivan said. "But I think a court of appeals is going to be slow to order him off the case."

A New York-based appeals court in January accepted IBM Corp.'s claims of bias and removed a district judge overseeing the computer maker's antitrust case with the Justice Department. That move came after Judge David Edelstein had spent 39 years on the case, however.

Should the effort to remove Sporkin fail, the judge would normally be expected to be charged with monitoring Microsoft's compliance with the settlement for years to come, even if the appeals court orders him to accept the agreement's overall terms.

Microsoft general counsel William Neukom said in an interview that the company challenged Sporkin's role because it wants the appeals court to consider not only the judge's decision, but also the way he reached it.

"If the only purpose that serves is to encourage the court of appeals to realize that this was a quite strange procedure that led to an erroneous conclusion . . . that will be a successful appeal, in our view," Neukom said.

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