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Microsoft Appeals Breakup Order

Antitrust: Software giant says lower court judge was biased. Firm uses strategy it relied on five years ago.

November 28, 2000|JUBE SHIVER Jr. | TIMES STAFF WRITER

WASHINGTON — Microsoft's lawyers asked a federal appeals court Monday to overturn the breakup order of the software giant, citing repeated errors and bias by the lower court judge who handled the landmark antitrust case.

In a 179-page brief filed with the U.S. Court of Appeals in Washington, Microsoft said U.S. District Judge Thomas Penfield Jackson violated judicial ethics by speaking out in public on the case after ordering the breakup of the company.

Microsoft contends that Jackson's public outspokenness compromised "the appearance of impartiality, if not demonstrating actual bias against Microsoft."

Jackson made no secret of his impatience with Microsoft during the 78-day antitrust trial. And critics were taken aback by remarks the judge made after the trial. In one interview with the Wall Street Journal, Jackson assailed Microsoft's credibility, saying, "If someone lies to you once, how much else can you credit as the truth?"

Microsoft's brief was the first major legal document due before oral arguments begin in late February. The appellate court is not expected to rule until several months after it hears arguments.

Microsoft said Jackson's public comments on the case were "emblematic of the manner in which he conducted the entire case--employing improper procedures and changing the rules of the game, always to Microsoft's detriment."

"The entire proceeding below was infected with error," Microsoft charged, "revealing a profound misunderstanding of the antitrust laws. . . ."

In targeting Jackson's alleged bias, Microsoft hopes to capitalize on a strategy it successfully used five years ago, when it complained to the appeals court that U.S. District Judge Stanley Sporkin abused his discretion and showed bias in refusing to grant a consent decree in a related antitrust dispute between Microsoft and the government.

The U.S. Court of Appeals subsequently ordered Sporkin off the case, which evolved into the antitrust dispute now before the court of appeals. Although Microsoft did not cite the appeals court rebuke of Sporkin in its current brief, the company is seeking an equally harsh appellate chastisement of Jackson.

Jackson was not available for comment. But the Justice Department, which joined 19 states in bringing the antitrust cast against Microsoft two years ago, issued a statement of support, saying Jackson's "judgment is well-supported by the evidence . . . including thousands of pages of Microsoft's own documents."

Legal experts, however, say Microsoft's strategy of targeting the judge could resonate with the conservative judges of the U.S. Court of Appeals.

"I think Microsoft is raising a legitimate point in light of the post-trial comments of Judge Jackson," said Ernest Gellhorn, a George Mason University Law School professor. Microsoft's allegations, Gellhorn said, could "condition the court to look at [Jackson's] findings of fact and legal analysis more cautiously."

Daniel M. Wall, a San Francisco tech industry lawyer who is a former trial attorney for the Justice Department and founder of Antitrust magazine, agreed that "Microsoft's appeal is plenty strong enough to avoid a breakup." But he argued that "they could still lose the case" on other grounds.

Some analysts have speculated that a George W. Bush administration might cut a deal with Microsoft if the company wins at the appeals court. On Monday, Microsoft's shares rose 75 cents to close at $70.69 on Nasdaq.

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