Small U.S. Victory Over Microsoft
Affirming authority to decide what happens next in the Microsoft Corp. antitrust case, a federal appeals court Monday said it would step aside and allow the landmark case to go directly to the U.S. Supreme Court, if so requested by a lower court.
The U.S. Court of Appeals in Washington scheduled hearings on Microsoft’s objections to a lower court order that requires the company to implement sweeping restraints on its business practices by Sept. 5. But the appeals court said the hearings would be held only if the Justice Department, 17 states and the District of Columbia do not succeed in securing an expedited review of the case by the Supreme Court.
The government has already submitted a request to U.S. District Judge Thomas Penfield Jackson to expedite the case. Jackson, who ordered Microsoft split up and hit the company with sweeping restrictions on its business conduct this month, has signaled that he will likely approve the request, perhaps as early as this week.
Monday’s procedural action was viewed as a small victory for the government. Although the appeals court rebuffed the government’s bid to reject Microsoft’s request for a stay outright, the government prevailed on its overall strategy to give the Supreme Court first crack at reviewing Jackson’s antitrust decision.
Citing the need to get the case quickly resolved, the government has pressed for the antitrust case to go directly to the Supreme Court rather than taking the more traditional route to the Court of Appeals, which two years ago ruled in favor of Microsoft in a related antitrust matter.
“The bottom line of the appeals’ court order is that if Microsoft wants a stay, they will either have to get it from [Judge] Jackson or the Supreme Court,” said William E. Kovacic, a law professor at George Washington University.
But Microsoft officials also found reasons to rejoice in the appeal court order.
“We believe this [decision] shows, once and for all, that Microsoft did not file its stay motion prematurely with the appeals court,” said Microsoft spokesman Jim Cullinan.
Early this month, Jackson ordered Microsoft split in two and told the company to offer uniform licensing terms for its software to all computer makers. Jackson also ordered Microsoft to permit PC makers to customize the appearance of Windows to suit customers and to afford independent software developers the same access to the underlying Windows software codes as in-house Microsoft software engineers have.
Jackson’s order that Microsoft be divided into two competing companies is on hold until the company exhausts its appeals. Microsoft had sought to get the court of appeals to delay the business restrictions as well.
Although the appeals court said any stay of antitrust business restrictions on Microsoft will be up to the Supreme Court, it is far from certain that the high court, which adjourns its current session June 30, will take the case, legal experts say.
The Supreme Court could take as little as a few days or as long as several months to indicate if and when it might review the Microsoft antitrust case under a little used 1974 federal law known as the Expediting Act.
The law permits either side in an antitrust case in which the federal government is a party to bypass the court of appeals and take the case directly to the Supreme Court from trial court.
Microsoft on Monday filed its opposition to the government’s request for expedited appeal to the Supreme Court. “We believe that the most appropriate venue for this appeal should be the U.S. Court of Appeals, rather than the government’s clear attempt to circumvent the normal appeals process and avoid the appeals court at all costs,” Microsoft spokesman Cullinan said.
