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Microsoft, DOJ joust over courts
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June 13, 2000: 9:20 p.m. ET
Following MSFT appellate filing, Justice requests appeal to Supreme Court
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NEW YORK (CNNfn) - The Justice Department moved swiftly late Tuesday to have the landmark Microsoft breakup ruling sent directly to the U.S. Supreme Court, bypassing a federal appeals court.
Hours earlier, a federal appeals court had agreed to hear Microsoft's appeal of Judge Thomas Penfield Jackson's ruling to break the software giant into two companies and impose a series of restrictions on its business conduct.
The Justice Department's move punctuated a day of legal maneuvering between the U.S. government and Microsoft in what amounted to a dramatic and highly unusual "battle of the courts."
To move the ordered breakup of Microsoft to a swift conclusion, the Justice Department wants Judge Jackson to grant its request to send the case over the heads of the intermediate court. The Justice Department is trying to move the case directly to the high court using an obscure section of antitrust law called the Expediting Act.
 Under that act, Jackson would need to certify that immediate consideration of the appeal by the Supreme Court is "of general public importance in the administration of justice," Harvey Saferstein, an antitrust attorney with Fried Frank Harris Shriver & Jacobson in New York, said in an interview on CNNfn's Moneyline News Hour Tuesday. [202K WAV or 202K AIFF]
Microsoft, by contrast, wants its appeal to be heard by the U.S. Appeals Court, where it has received favorable decisions in previous antitrust matters filed by the government. Earlier in the day, Microsoft requested --and immediately received -- an order from seven judges of the U.S. Circuit Court of Appeals for the District of Columbia promising to review Judge Jackson's final ruling.
In its statement issued Tuesday evening, the Justice Department expressed annoyance at Microsoft's maneuver, calling it "an ill-conceived attempt to end-run the Expediting Act."
Microsoft asks appeals court to delay breakup
In the 39-page brief, Microsoft asked the appellate court to delay the implementation of Judge Jackson's final judgment until the completion of the appeals process. Redmond, Wash.-based Microsoft, the world's largest software maker, said its appeal will present an "overwhelming case for reversal of the judgment based on an array of serious substantive and procedural errors that infected virtually every aspect of the proceedings" in Judge Jackson's court.
 The company insists that "time is of the essence," since a series of restrictions on its business contained within Judge Jackson's final ruling is slated to take effect 90 days after last week's decision, and is set to remain in place for three years as the case moves through the appeals process. The restrictions are designed to prevent Microsoft from punishing hardware and software companies working on competing products and favoring computer companies and software developers that help it exclude competitors
Some trial watchers said the latest developments make it more likely that those restrictions will be postponed as the company's appeal is considered.
"Today's action makes it likely that during the period that the Supreme Court is considering the case, there will likely be a suspension of the interim remedies," William Kovacic, an antitrust professor at George Washington University, said in an interview on CNNfn's Digital Jam program Tuesday. [214K WAV or 214K AIFF]
"Microsoft is looking forward to the next phase of this case, and we are optimistic that the appellate courts will reverse the recent ruling," said
Steve Ballmer, Microsoft president and chief executive.
Waiting for the Supremes
The Microsoft case could pause for more than a month while both sides wait to see if the Supreme Court will agree to hear the appeal, essentially snatching it out of the hands of the Appeals Court. Donald Falk, an antitrust lawyer at Mayer Brown & Platt in Washington, said that the Supreme Court is likely to take at least six-to-eight weeks to decide whether to hear the case, although he noted that its decision is likely to come before September.
Four of the Supreme Court's nine justices would need to agree to hear the Microsoft case for it to skip the federal appeals court. In general, the high court is reluctant to hear cases without the benefit of appellate review because it doesn't like to wade through long, complicated lower-court trial records. However, it might make an exception for the Microsoft case because of its significant national importance, Falk said.
"This is exactly the kind of case that the Expediting Act is designed for," Falk said. "It is not an option that the government has abused in the past. It's been invoked only twice - both times in the government's antitrust case against AT&T."
Shares of Microsoft (MSFT: Research, Estimates) closed at 67-7/8, up 1, on Tuesday. 
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