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Microsoft jumps the gun
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June 6, 2000: 8:09 p.m. ET
Software giant has last word in antitrust case a day early; ruling is imminent
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NEW YORK (CNNfn) - Setting the stage for a sooner-than-expected final judgment in its landmark antitrust case, Microsoft on Tuesday submitted its response to the U.S. Justice Department's latest proposal to split the company in two.
The filing, originally expected to be submitted Wednesday, came a day after the government submitted a slightly modified breakup plan. It is expected to be the last filing in the case before the judge hands down a final ruling. Such an action by Judge Thomas Penfield Jackson could come as early as Wednesday, trial watchers said.
In the seven-page brief filed in U.S. District Court in Washington, Microsoft said the comments the government made in its latest proposal "merely confirm that its requested relief is punitive in concept and effect," and that splitting up the company "will inflict severe harm on Microsoft and third parties."
 On Monday, government attorneys filed their modified position, advising Jackson to reject almost all of the changes Microsoft wanted to make to their breakup proposal, and agreeing only to a few grammatical and semantic changes. They also advised Jackson to refuse Microsoft's request for a year's time to draft a divestiture plan should such action be ordered.
In Tuesday's brief, Microsoft attorneys complain that what concessions the government did make in response to its concerns not only fail to clarify problems that they saw in the breakup plan, but actually make the situation worse.
"The government has either ignored those problems completely or made them more pronounced with its extreme readings of various provisions and with its repudiation of its earlier attempt to 'clarify' other provisions," Microsoft said in the brief.
The document also says that the few changes to which the government has agreed, "are purely cosmetic and do nothing to remedy the serious substantive deficiencies of the decree."
Click here to read the full text of Microsoft's filing
Microsoft also asked Judge Jackson to consider previously suggested language that would give it more freedom to enter into agreements with software developers and computer makers should the company be split in two.
Justice Department spokeswoman Gina Talamona on Tuesday said the latest filing "rehashes Microsoft's old arguments, ignores the extensive violations found by the court, denies the need for serious relief and grossly distorts our proposed remedy."
Microsoft had been given until Wednesday to submit its latest brief, and it had been generally expected that Jackson would hand down a final ruling by Friday. Executives have vowed to appeal any breakup order, a process trial watchers expect would drag on for at least a year.
It's not over yet
And some trial watchers said the haste with which Microsoft submitted its latest filing and the stinging tone of the language are a strong signal that the company is anxious to get the appeal process under way.
"Microsoft is frustrated, a little bit angry and basically saying, 'Let's get on with it,'" Harvey Saferstein, an antitrust attorney with Fried Frank Harris in San Francisco, said in an interview on CNNfn's Moneyline News Hour Tuesday. [275K WAV or 275K AIFF]
The wild card now, however, is what sort of action Jackson decides should be taken against Microsoft immediately upon his ruling, Saferstein noted. "The next step, which we really have not focused on a lot, is what's going to be imposed on Microsoft pending the appeal," he said.
 Though it is expected that he would give Microsoft some time to draft a divestiture plan, Jackson could impose some sort of government oversight of the company as it moves to comply with such a ruling.
Microsoft is likely to request a stay of any action Jackson deems should be taken against the company immediately following his ruling, which most observers expect will be in the government's favor.
Microsoft (MSFT: Research, Estimates) shares added 2-3/4 to close at 69-5/8 in Nasdaq trade Tuesday ahead of the filing. 
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