Microsoft Reiterates Call for Lower-Court Review

Legally, it's called "Microsoft's Reply Brief to the Supreme Court of the United States."

Legally, its called "Microsofts Reply Brief to the Supreme Court of the United States." But really its Microsoft Corp.s latest objection to the expediting of its antitrust case directly to the Supreme Court.

And in this latest in a seemingly never-ending river of briefs, Microsoft not surprisingly states that the Department of Justice is wrong, and that the U.S. Court of Appeals for the District of Columbia should hear the case before the Supreme Court.

Microsofts Tuesday filing, the last before the Supreme Court decides whether to take the case, argues five points: The Expediting Act gives the Supreme Court the discretion to deny such appeals; using AT&T Corp.s breakup case as a precedent to support expedited review is unfounded; the factual issues in the case are complex enough to warrant appeals court review; procedural errors and other legal nitpickings warrant further review; and the DOJs other arguments are simply "unavailing."

Microsofts lawyers, who have often pointed to the far-reaching effects this case has on the national economy, now contend that, unlike other antitrust cases, this one is not a "true national emergency."

"The need for soundness in the result outweighs the need for speed in reaching it," Microsoft lawyers quote Justice Burton, addressing the Steel Seizure antitrust case of the 1950s. "The Nation is entitled to the substantial value inherent in an immediate consideration of the issue by the Court of Appeals."

Countering the DOJs last brief, which was heavy with case precedents, Microsoft likewise points to more than a dozen cases to support its stand.

A footnote offends

But the overall tone of todays document suggests a case subjected to shoddy lawyering by the plaintiffs.

"Appellees halfheartedly argue that the record ... presents no obstacle to direct review," Microsoft states at one point, while at another spot, "On the clearest procedural errors below, appellees are conspicuously silent." And another: "Appellees seek to minimize the complexity of the legal issues raised here by downplaying some and ignoring others. For example, in their statement of the case, appellees relegate the discussion of their tying claim -- the linchpin of their complaints -- to a footnote."

Microsofts lawyers even answer a rhetorical question posed in the DOJs briefing, filed last week. "Appellees ask rhetorically what future case would qualify for direct review if this case does not. The answer is: a case in which the nature of the issues presented and the state of the record make it suitable for direct review by this Court. AT&T was such a case; this case is not."

But Microsoft saves its harshest words for last, zeroing in on the so-called amicus briefings filed with last weeks DOJ response. In those documents, Judge Robert Bork, who had previously voiced opposition to expediting the case, comes out favoring it.

Microsofts lawyers sweepingly dismiss the briefings without counter arguments in a loquacious paragraph:

"The amicus briefs merit little response," Microsoft states. "Their scurrilous accusations based entirely on press clippings and other hearsay are emblematic of the sensational manner in which this case was tried. That said, the reversal of position by Judge Bork, counsel of record for one of the amici supporting appellees, warrants mention. Two months ago, Judge Bork was quoted as referring to appellees effort to secure direct review in this Court as a futile gesture, stating I dont quite see the national emergency. ... He also was quoted as saying I dont know why this case should be treated like its some kind of an earthquake. ... I kind of doubt that the Supreme Court would grant it. ... Judge Borks initial reaction was correct, and he offers no explanation for his change of view."

Microsoft first urged the Supreme Court on July 26 to send the case back to the D.C. Court of Appeals.

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