Microsoft Looks Beyond Judge Jackson

By Scott Berinato  |  Posted 2000-06-01

This is legal masochism.

As reported earlier today, still more legal filings next week will precede U.S. District Judge Thomas Penfield Jacksons remedies ruling in the antitrust case against Microsoft Corp.

Microsoft on Wednesday filed a lengthy response to the Department of Justices second version of its proposed remedies, at the same time adding another document that called the request for a corporate breakup "extreme and unjustified." In the latter filing, Microsoft lawyers questioned the logistical viability of divestiture saying "When an injunction is so vague and ambiguous that it defies comprehension, it is void and unenforceable."

That prompted Jackson to request more briefs from both sides before he rules, possibly by the end of next week.

Next stop: D.C. Court of Appeals

The content of the filings isnt particular surprising -- instead, it repeats the respective filers position in the case. But dont think any of this has to do with swaying Jackson, said one antitrust expert.

"Microsoft understands the impossibility of changing Judge Jacksons mind," said Hillard Sterling, an attorney with Gordon and Glickson LLC in Chicago. "But these types of filings are usually aimed at loading the record for appeal anyway. This is as much for the appellate court as it is for Judge Jackson."

The appeals process could take a year or more. When Microsoft appeals (as it has said it will do), the DOJ will request expedition of the case to the Supreme Court. If Jackson grants the request, the highest court in the land could either take the case immediately or send it back to the D.C. Court of Appeals.

If, as is expected, the Supreme Court returns the case to the D.C. Court of Appeals, it will be heard in front of three of the 12 Appeals Court judges.

Jackson will likely request interim relief while the appeals process goes on. The appellate court would then decide whether to apply interim relief or stay such a request.

When the D.C. Court of Appeals makes its ruling, the losing side will likely request a hearing in front of all 12 Appeals Court judges.

Pending that decision, the case would then move to the Supreme Court for final consideration.

Rocket Fuel