Microsoft to Supreme Court: Send Case Back

By Scott Berinato  |  Posted 2000-07-26

As expected, and in accordance with normal judicial process, Microsoft Corp. today filed its "Jurisdictional Statement to the United States Supreme Court," urging the highest court in the land to send the companys antitrust case back to the District of Columbia Court of Appeals.

District Judge Thomas Penfield Jackson ruled in June that Microsoft had abused its monopoly power to compete illegally and unfairly and should be split in two.

"As Justice Frankfurter once observed, Wise adjudication has its own time for ripening," write Microsofts lawyers in the 30-page document, which outlines in two parts why the landmark case should not be expedited for immediate review by the Supreme Court.

The first part, "Statement of the Case," suggests the appeals process will be able to address procedural wrongdoing in the case.

"When these actions were filed in May 1998, Assistant Attorney General Joel I. Klein announced that the DOJ was embarking on a surgical strike, bringing a tightly focused case that centered on Microsofts design of its Windows operating system to include Web browsing functionality," Microsoft states. "Over the next two years, however, the District Court permitted appellees to transform their case beyond recognition."

Part 1 also refers to "rank hearsay" being admitted as evidence. In fact, in one paragraph of the summary, the word "hearsay" is used four times, including once in which Microsoft calls 69 paragraphs of former Netscape CEO James Barksdale testimony "inadmissable hearsay, often multiple levels of hearsay."

The complexity of technology

Part 2 of Microsofts statement attacks the government based on reasoning Microsoft has used throughout the case: The technology is too complex for the highest court to take on.

"Microsofts appeals raise numerous complicated factual issues," the company states. "Resolution of these issues will require the reviewing court to sift through an extensive record. That task will be even more demanding because of the complexity of the technologies at issue and the District Courts failure to provide any citations to the record to support its findings."

The Justice Department and states are scheduled to file response briefs on August 15; Microsoft, if it chooses to do so, can respond on August 22.

The Supreme Court will decide in September whether to take the case or send it back to the D.C. Court of Appeals.

Rocket Fuel