Microsoft opens fire on Jackson

Microsoft gave the antitrust judge a good skewering in its filing to bring the case before the US Court of Appeals
Written by Lisa M. Bowman, Contributor

Citing his media interviews and his decision to grant nearly every one of the government's requests, Microsoft publicly skewered the federal judge who has ruled against the company in two separate cases.

In a document filed Tuesday asking a federal appeals court to set aside restrictions imposed by US district judge Thomas Penfield Jackson until its case is decided, the company complained the judge had disobeyed rules about procedure and evidence and signed off on remedies it called "extreme".

The US Court of Appeals for the district of Columbia circuit agreed Tuesday to hear Microsoft's appeal of Jackson's decision that the company violated antitrust laws and should be broken up into two companies and subject to severe conduct restrictions.

Arguing that procedural rules were ignored is a common tactic during an appeal, thus it's not unusual for appeals filings to criticize the lower court. But the document marks the first time Microsoft has had a chance to speak out publicly against Jackson.

Though the company grumbled privately during the trial about the judge -- who at times seemed annoyed at Microsoft's attorneys, cutting them off, even rolling his eyes -- defence lawyers risked antagonizing Jackson if they were publicly critical during the proceedings.

Now that the case is out of Jackson's hands, Microsoft has submitted a laundry list of complaints about him to the higher court.

Among other things, the company asserted that Jackson ignored an earlier ruling by the appeals court that allowed Microsoft to tie its Internet Explorer browser to Windows, allowed government attorneys to expand the scope of their case, over Microsoft's objections, and on at least two occasions -- before the trial began and after the remedy hearing concluded -- refused to grant Microsoft more time to prepare to fight the charges against it.

Not only has Jackson ruled against the company in this case, two years ago he ruled Microsoft could not tie the browser to Windows. That ruling was later overturned by the same appeals court that is now slated to hear this case.

The company also said the judge ignored traditional rules of evidence, "admitting into evidence numerous newspaper and magazine articles on another rank hearsay."

Microsoft's filing additionally lambasted Jackson for interviews, both during and after the trial. In its filing, Microsoft quoted from The New York Times, The Washington Post, and The Wall Street Journal in the days following Jackson's decision to break up the company.

"I am not aware of any case authority that says I have to give them any due process at all. The case is over. They lost," Jackson told the Times. It is one of a series of quotes Microsoft cited as "most shocking".

Microsoft attorneys tried to paint Jackson as unqualified to decide the case, writing in the filing "When asked why it had simply rubberstamped plaintiffs' draconian remedies, the court is quoted [in The New York Times] as responding, 'I am not in a position to duplicate that and re-engineer their work. There's no way I can equip myself to do a better job than they have done.'"

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