Appelate Court will hear Microsoft Case

Monday, June 19th 2000, 12:00 am
By: News On 6

WASHINGTON (AP) — A federal appellate court agreed Monday to hear arguments on whether to hold off implementing a federal judge's order that would place restraints against Microsoft's business practices as a remedy for antitrust law violations.

But the U.S. Court of Appeals for the District of Columbia also said it would suspend its pursuit if the case gets sent directly to the Supreme Court for review.

In its decision Monday, the appeals court turned down a Justice Department motion to summarily dismiss the software giant's requested stay of an order to break up the company in two. The June 7 order, issued by U.S. District Judge Thomas Penfield Jackson, also placed various restrictions on the company's business practices to prevent it from abusing its monopoly in the operating systems market.

``We're obviously pleased that the court (of appeals) rejected the government's invitation to delay this case any further,'' said Microsoft spokesman Jim Cullinan.

The Justice Department had hoped to bypass the appeals court, which in a previous case reversed Jackson's decisions regarding Microsoft, and has asked the judge to send the case directly to the Supreme Court under the federal Expediting Act.

The appellate court said in its order Monday that the government has 10 days to respond to Microsoft's request for a stay. Microsoft would then have another week to reply. The court said it would suspend its schedule if, in the meantime, Jackson decides to send the case to the Supreme Court. The Justice Department saw that part as a victory.

``We're very pleased with the court's ruling that it would stay further proceedings if the district court certifies the case for direct appeal to the Supreme Court,'' said Gina Talamona, a DOJ spokeswoman.

Monday's crossfire of legal papers and statements continued the steady volley of maneuvers by lawyers for the software giant and the government that has occurred since Jackson's order that Microsoft be broken up.

Jackson postponed his split of Microsoft from taking effect until the case makes its way through the appeals process. However, the restrictions he ordered on company business practices would start taking effect on Sept. 5.

Last week, the government told the federal appeals court that Microsoft violated federal rules of procedure by asking it to stay antitrust penalties before Jackson ruled on the same request.

Microsoft had asked the appellate court for a stay after Jackson deferred a decision on one. It filed a brief arguing that the appellate court was not required to wait for Jackson's ruling.

On Monday, the company explained in a separate filing its reasons against sending the case directly to the Supreme Court. In a response to the DOJ request, Microsoft said the company had a right to go through the normal appeals process and that the case didn't fit the requirements of the Expediting Act.

In addition, Microsoft noted that while the government's case can be fast-tracked to the Supreme Court, the other case filed by 19 different states will likely remain in the U.S. Court of Appeals.

``Given that the Supreme Court may well not accept jurisdiction, and that the Court of Appeals has already stated that it will hear Microsoft's appeals ... such certification promises only to complicate and delay resolution of the two cases,'' Microsoft said in its brief.

The Justice Department takes the position that it is one case — not two.

Jackson could rule on the government's request as early as Tuesday. Previously, the judge has signaled that he would be willing to fast-track the case in hopes of getting feedback from an appeals court as soon as possible.

Also on Monday, a state judge in Nevada dismissed a class-action antitrust suit against Microsoft brought by consumers. The Nevada court cited the same law that an Oregon court used last week to dismiss a similar case. That law states that only those consumer who purchase a product directly from the company can sue to recover antitrust damages.

Microsoft sells the vast majority of its software through computer makers and retail stores.