Feds Defend Microsoft Judge

Friday, January 12th 2001, 12:00 am

By: News On 6

WASHINGTON (AP) â€” The government pressed its legal battle to break up Microsoft, filing court papers on Friday denying that the trial judge in the landmark antitrust case showed bias against the company.

Addressing several controversial out-of-court remarks by U.S. District Judge Thomas Penfield Jackson that have been questioned by Microsoft, the Justice Department said the comments ``demonstrate neither bias nor the appearance of bias.''

``The remarks cited by Microsoft provide no reason to doubt Judge Jackson's impartiality,'' the department's Antitrust Division said in a 150-page brief filed with the U.S. Circuit Court of Appeals for the District of Columbia. That court will hear the company's appeal of Jackson's breakup order.

Ari Fleischer, President-elect Bush's spokesman, said Friday the new administration will review all government litigation cases. Without specific reference to Microsoft, Fleischer said, ``As a rule the president-elect is not going to rush to litigation the way some people in Washington do. He does not think that serves the country well.''

But it is unlikely the Bush administration will revise the federal stance in the Microsoft case before the appeals court rules, antitrust experts said. Even if the government did pull out, the state attorneys general have promised to fight on.

Microsoft pointed out several Jackson statements as a cornerstone of its brief calling for his decision to be reversed. The Justice Department, in contrast, cited other Jackson quotes Friday. Those included a statement in which the judge said he bore ``no ill will against the company'' or its co-founder and chairman, Bill Gates.

In an interview this month with The New Yorker magazine, Jackson had compared Gates to Napoleon and said Microsoft executives behaved like children.

``I think he has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses,'' Jackson said in the interview.

The judge had ordered Microsoft broken into two parts in a decision last June 7 that rocked the software giant and the industry.

Apart from the arguments about Jackson's judicial demeanor, Microsoft also contended that the judge incorrectly assessed the facts of the case, and that Microsoft did not engage in anticompetitive behavior. The government disagreed with this in the filing Friday, saying the software giant used its overwhelming market share to shut out rivals.

''(Microsoft) deliberately embarked on a multifaceted campaign of anticompetitive conduct to protect its operating system monopoly,'' the government said, citing efforts against Netscape Corp. and Sun Microsystems.

The government also went to the heart of the antitrust case, Microsoft's decision to bundle its Windows operating system and Internet Explorer software. The Justice brief reiterated its argument that they are two separate products bundled together, forcing customers who want Windows to also have the company's Internet browser.

Microsoft has argued that the two products have become intertwined into one, in order to provide more functions to users, and not to keep possible competitors out of the browser market.

Microsoft spokesman Vivek Varma said the company believes it will be vindicated, and cited the merger of America Online and Time Warner, given final approval late Thursday by government regulators, as evidence that Microsoft isn't a sole monopoly power.

Varma called the merger the latest example of ``the fierce competition that Microsoft faces in the high-tech industry.''

Bob Lande, a professor at the University of Baltimore Law School, said he wasn't surprised by the government's strong defense of Jackson.

``They did exactly what they had to do,'' he said. ``They're trying to rehabilitate Jackson and make him credible.''

In another development, several of Microsoft's competitors, working collectively as ProComp, hired former independent counsel Kenneth Starr to assist their efforts.

``They're just trying to give a little more credibility to the argument that you can be a respected conservative Republican and still believe that Microsoft broke the law,'' Lande said of Starr's hiring, first reported by The Washington Post.

Also Friday, Microsoft was handed a victory by a Baltimore federal judge who decided that plaintiffs in 38 class-action lawsuits could not seek damages in connection with their business dealings with Microsoft.

U.S. District Judge J. Frederick Motz said the plaintiffs lacked standing to make that claim because they got their copy of the Windows operating system pre-installed on their PCs, or through resellers, rather than directly from the company. The suits were individual actions based on Jackson's ruling.

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On the Net: Microsoft: http://www.microsoft.com

Department of Justice: http://www.usdoj.gov

U.S. Court of Appeals for the District of Columbia: http://www.cadc.uscourts.gov