Win-win decision in Microsoft case

Both Microsoft and DoJ win something as Jackson renders a split decision, sending antitrust case to the Supreme Court but freezing the remedies in the process
Written by Charles Cooper, Contributor

Score: Microsoft 1, Trustbusters 1.

In a split decision that awarded something to each side, the judge in the Microsoft antitrust case on Tuesday sent the software maker's appeal directly to the Supreme Court for consideration, acting under a special law that permits the judge to bypass an intermediate court.

That was something that the government had urged upon US district judge Thomas Penfield Jackson, who was considering Microsoft's request to send the case to the appellate court.

But in a surprising additional order, Jackson on Tuesday also granted Microsoft a request to stay, or freeze, stringent conduct remedies until a higher court acts. Those restrictions on the software giant's business practices had been set to take effect on 5 September.

The net result of Jackson's decision is that the case is now headed to the Supreme Court, unless five justices vote to send it back to the US Court of Appeals. Glenn Manishin, a partner with Washington DC law firm Patton and Boggs said the best way to interpret the judge's decision on the stay order was by viewing it within the context of the case's certification to the Supreme Court.

"Given what happened with the jockeying last week over where the appeal would happen, one of the issues the Supreme Court would undoubtedly consider in deciding whether to accept the case now is the status of the outstanding stay request and the Supreme Court's huge burden of finishing the term out in the next three weeks," he said.

Manishin, who used to work in the antitrust division of the Justice Department, said "it was ingenious of the judge to give the Supreme Court the case at the same time that he removes the pressure on (the Supreme Court) to remand it back to the Court of Appeals."

Microsoft was hoping the case would first wind up in the hands of the appellate court, where the technology giant has had past success.

Still, company officials expressed relief at being able to get a freeze on conduct changes ordered by Jackson as part of his wider company breakup order. The judge's conduct remedies were not slated to go into effect until all appeals were complete.

"We're pleased the District Court rejected the government's arguments and decided to stay the entire judgment, pending the appeal," said Microsoft spokesman, Vivek Varma.

"This is not unexpected. And it's now the Supreme Court's discretion to accept complete jurisdiction or allow it to be heard by the appeals court."

Another company official, speaking on condition of anonymity, was more pointed.

"The big bonus here is that we don't have to look over our shoulders, worrying that [assistant US attorney general] Joel Klein is going to send in the Wehrmacht the next time we come out with a big product announcement," the official said.

And as luck would have it, the judge's decision does indeed come on the eve of the company's biggest product announcements in years.

Later this week, the company is hosting a day-long briefing in Redmond, for press and analysts to explain its plans for a computing architecture that comes under the Next Generation Windows Services (NGWS).

"I think the effect of his order is to move the ballgame into the Supreme Court's ballpark -- which is something the government wanted," said Stephen Houck, an attorney with Reboul, MacMurray, Hewitt, Maynard and Kristol.

"This is all just fencing around," he added. Houck was the lead lawyer representing the state attorneys general during the trial.

Perhaps it is the lack of air conditioning in the building that has finally got to our esteemed Mr Kewney. His imagination is running wild and he may be delirious. Come with Guy and be an imaginary fly on the wall in an imaginary conversation between Steve Ballmer and Bill Gates. Go to AnchorDesk UK for the news comment.

Take me to the DoJ/Microsoft special.

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