All Eyes on Microsoft as It Heads Back to Court

By Peter Galli  |  Posted 2001-02-22 Print this article Print

Appeals process begins in Washington next week; Jackson's conduct at issue; legal experts divided

As Microsoft Corp. and the Department of Justice prepare to present oral arguments to the U.S. Court of Appeals in Washington next week, legal experts are divided over the approach the justices may take to the matter.

Herb Hovenkamp, a law professor at the University of Iowa, in Iowa City, and an antitrust expert, said he expects the hearings to concentrate on the definition of monopolistic conduct and whether Windows and IE (Internet Explorer) are legally separate products for tying purposes.

Bill Kovacic, a George Washington University law professor in Washington, supports this view, saying the oral arguments will revolve around legal issues such as the legitimacy of Microsofts behavior, its exclusivity when dealing with OEMs, the invitation to collude extended to Netscape Communications Corp. and the question of possible remedies.

But John Soma, a law professor at the University of Denver, who was a member of the DOJs antitrust team that litigated against IBM in the 1970s, said that while the courts focus should be on the substantive legal issues, it must address possible impropriety by District Judge Thomas Penfield Jackson, given his wide-ranging public comments on the matter.

The Jackson question

On that point, however, Hovenkamp disagrees, saying that while some time will be devoted to possible misconduct by Jackson, it will take place at the end of the proceedings and form a minor part of the hearings.

"My guess is that the bulk of the time will be spent focusing on the substantive legal issues, namely the definition of monopolistic conduct and whether Microsofts behavior meets that definition and whether Windows and IE are legally separate products for tying purposes," Hovenkamp said.

But Soma said the integrity of the court is at stake, particularly given the backlash following the Supreme Courts involvement in the recent U.S. presidential election. "While I dont think Jackson broke any formal, written rules, I dont know of any other antitrust judge who has publicly said so much about a case that is still pending," he said.

While it is almost certain that Jackson will be removed from the case, the justices are unlikely to send the matter back to the District Court for a new trial. The Court of Appeals will, most likely, send the case to a new judge for review while upholding the findings of fact, Soma said.

The new judge will then review Jacksons conclusions of law and hold hearings about a new remedy if necessary. "This would sanitize the case, while restricting it to a limited review on a limited number of issues, yet allow for a substantive hearing on the remedy," Soma said.

Hovenkamp said he agrees that the justices will want to hear from Microsoft and the government on possible actionable misconduct by Jackson and what possible remedies there should be, "particularly if either party believes his findings of fact have been compromised by this. But I think that it is highly unlikely they will rule his findings were compromised," he said.

Most of all, Microsoft wants a new trial, and Soma stressed that the Redmond, Wash., company will use "every trick in the book" to try to convince the court to grant one. "This is vital to them as it will then take the trial back into the political realm," he said. "The Bush administration has said it supports competition rather than litigation, so a new trial ... makes a negotiated settlement much more likely."

Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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