Government moves to speed MS trial

Microsoft could be faced with an injunction before the shipping date of Windows XP
Written by Joe Wilcox, Contributor

The government on Friday asked an appeals court to issue an order promptly moving the Microsoft case back to the trial court.

If honored, the request would mean that the government could go forward with the case immediately rather than waiting until mid-August. The government would otherwise have to wait 52 days from the Court of Appeals' 28 June decision before the case would return to the US District Court for the District of Columbia.

The action could be a sign that the government will seek some kind of injunction against Microsoft before the new Windows XP operating system ships in October.

"Probably what is behind is they want to get back to the District Court to talk about interim remedies," said Andy Gavil, an antitrust professor with Howard University Law School. "Otherwise, nothing happens before August. If nothing happens before August, the chances to get something to happen before XP ships in October will be diminished. Why lose the five or six weeks between now and then when it could already be under consideration of the District Court?"

With its June decision, the US Court of Appeals for the District of Columbia Circuit threw out an order breaking Microsoft in separate operating system and software application companies. US District Judge Thomas Penfield Jackson had delayed that order and another restricting Microsoft business practices, pending the appeal's outcome. With the remedy out and returning to the District Court for rehearing, the government is free to ask the new judge assigned to the case for temporary action against Microsoft.

"The appeals court did after all uphold the core of the government's case, or monopoly maintenance," said Bob Lande, an antitrust professor with the University of Baltimore School of Law.

The request, filed by the Justice Department and the 18 states suing Microsoft, asks for "immediate issuance of mandate...In light of the exceptional importance of this case, and the strong public interest in prompt entry of a decree providing an effective remedy for Microsoft's illegal conduct."

Microsoft has ten days to respond to the request.

Normally both sides would have 52 days from the appeals court decision to request a rehearing.

But because the court earlier made the decision to hear the case en banc --before a full panel of eligible judges -- such a request would likely be rejected, say legal experts. Most cases are heard before three judges; the court convened a panel of seven jurists for Microsoft's appeal.

"What the government is asking for is to expedite the normal time schedule since there's no likelihood of an en banc re-hearing, since they've already heard it altogether," Gavil said.

In the five-page brief, the government urged the appeals court to act quickly.

"Delay in imposing an effective remedy inflicts substantial and widespread consumer injury and needlessly prolongs uncertainty in the computer industry," the document states. "In a dynamic marketplace, speed is of the essence in remedying the effects of unlawful exclusionary conduct designed to crush nascent competitive technologies. In these circumstances, the public interest is plainly served by allowing the proceedings on remand to go forward as quickly as possible."

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