Microsofts Legal Strategy: Delay, Delay!

By Peter Galli  |  Posted 2000-10-10 Print this article Print

The war of words between Microsoft Corp. and the U.S. Department of Justice shows no signs of abating, with both sides sniping at one another over the timetable for the appeal and the length of the briefs to be filed.

The war of words between Microsoft Corp. and the U.S. Department of Justice shows no signs of abating, with both sides sniping at one another over the timetable for the appeal and the length of the briefs to be filed.

For its part, the Redmond, Wash., software giant has continued its delaying tactics by requesting that the Court of Appeals for the District of Columbia allow it extra time and lengthy legal briefs in its appeal of a federal antitrust ruling, observers say.

Microsoft has asked the Court for 60 days in which to file its initial brief, 60 days for the DOJ to reply to that brief and then 14 days for the company to respond to the DOJ brief.

In contrast, the DOJ has requested that the court order Microsoft to file its principal brief by November 1, after which the DOJ would respond within 38 days, or by December 8.

DOJ: Its an appeal, not a retrial

Microsoft has accused the government of trying to short-circuit the appellate process by arguing for shorter briefs and deadlines. The company has "the responsibility to its employees, shareholders, business partners and customers, as well as to this court, to propose an appellate process that is adequate to resolve the many issues presented," Microsoft said in its most recent filing.

Microsoft has also asked that its initial brief be allowed to run to 56,000 words, with its rebuttal brief 28,000 words long. In its filing, the DOJ contended that 24,000 words should be sufficient for the principal and 7,000 for the rebuttal brief, dryly noting that "this is an appeal, not a retrial."

The Appellate Court normally limits principal briefs to 14,000 words and replies to 7,000 words.

"This is just another of Microsofts delaying tactics," said John Soma, a law professor at the University of Denver who was part of the Justice Departments legal team on the IBM antitrust case. "They are desperately trying to buy as much time as they can, wherever they can, particularly as they appear determined not to come to the table and negotiate a settlement."

The appeals process could take several years, particularly if the remedy side of the case is referred back to the District Court before being sent to the Supreme Court for consideration.

"This is exactly what Microsoft wants, as the longer the appeals process takes, the more private lawsuits they can settle and the stronger their final bargaining hand will be," Soma said.

At the Supreme Court next fall?

Bill Kovacic, an antitrust expert and law professor at George Washington University, believes the Appellate Court will allow Microsoft some flexibility with regard to the timing and length of its briefs, but he feels the case will be before the Supreme Court by this time next year.

While Microsoft is unlikely to get the 56,000 words it wants, the court will probably allow it 28,000 words, Kovacic said. But the actual timetable is likely to be more severe, he added.

Current federal rules allow the appellant 40 days in which to file its principal brief, 30 days for the other party to respond and then 14 days for the appellant to reply to that brief.

"I expect the Appellate Court to pretty much stick to this timeframe, with the briefings likely to take about three months and oral arguments being heard a month after that," Kovacic said. "The final Appellate Court decision should then be issued around June 2001, with the Supreme Court deciding in late fall 2001 whether to take the case."

But Microsoft runs the risk of irritating the court and raising suspicions about its motives by continuing to request delays and longer briefs, Kovacic said.

The Appellate Court is expected to announce the final timetable within the next 10 days.

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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