Microsoft Goes Back to Court

Appeals process begins in Washington this 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 this 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.

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, of Redmond, Wash., 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 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. The Bush administration has said it supports competition rather than litigation, so a new trial ... makes a negotiated settlement much more likely," he said.