Microsofts Legal Strategy: Delay, Delay!

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.