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DOJ pressures MSFT to appeal
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June 12, 2000: 8:56 p.m. ET
Justice asks judge overseeing case to delay response to Microsoft filing
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NEW YORK (CNNfn) - Seeking the upper hand in the Microsoft antitrust case, the federal government late Monday put pressure on the software giant to formally appeal last week's final ruling.
Judge Thomas Penfield Jackson last week ordered Microsoft to be broken into two smaller companies to prevent it from violating state and federal antitrust laws in the future. Jackson also imposed a series of restrictions on Microsoft's conduct, slated to take effect 90 days after last week's ruling and to remain in place for three years as the case moves through the appeals process.
Microsoft (MSFT: Research, Estimates) immediately asked Judge Jackson to delay the implementation of his landmark ruling until an appellate court hears its case, saying the ruling's provisions would "inflict grievous and irreparable harm on the company, its 35,000 employees, its millions of shareholders, its thousands of business partners and the tens of millions of consumers around the world who rely on Microsoft products."
The Justice Department on Monday asked Judge Jackson to delay ruling on the software firm's request for a stay until the company has formally filed its intent to appeal. The government's filing is a procedural move designed to speed up the complicated appeals process.
One Justice Department official said that by asking Judge Jackson to rule on the stay only after Microsoft has filed its intent to appeal, the government is attempting to move the process to the U.S. Supreme Court as quickly as possible. Microsoft, by contrast, wants its appeal to be heard by the federal Court of Appeals, where it has received favorable decisions in previous antitrust matters filed by the government.
The Justice Department wants to use a fairly obscure law called the Expediting Act to move the Microsoft case directly to the Supreme Court, but it cannot do so until Microsoft files its notice of appeal.
"Microsoft's insistence that it will not file its notice of appeal until after this court resolves its stay motion (even though those two events should be unrelated), and its intention to then seek a stay from the Court of Appeals while this court is considering whether to certify the case for direct appeal to the Supreme Court, is simply an attempt to manipulate the court and thwart the operations of the Expediting Act," the Justice Department said in Monday's filing.
 In addition, the government asked Jackson to reject Microsoft's request for a stay, saying that the company failed to demonstrate a legitimate need for more time.
Microsoft's filing "does not even mention the likelihood of success or the evaluation of the public interest," the Justice Department said in its 17-page filing made Monday.
The procedural battle highlights the government's desire to get the matter resolved by the courts as quickly as possible, and its fear Microsoft will attempt to delay a possible breakup at every turn. The government proposed a schedule that would require Microsoft to respond to Monday's motion by Wednesday.
Microsoft spokesman Jim Cullinan called Monday's filing "an extremely bizarre tactic by the government that seems to be creating unnecessary procedural delays."
"It's surprising that they took 17 pages to respond to our two-paragraph request for a stay from the trial court," Cullinan said. "These requests are normally pro-forma. The real request for a stay is filed at the appeals court level."
Judge Jackson is almost certain to reject Microsoft's request for a stay. However, Microsoft also plans to ask a federal appeals court to delay the implementation of Jackson's ruling, and the company's request is more likely to receive serious consideration at that level.
Rick Rule, a legal consultant to Microsoft, said that the government's concerns are unwarranted and that the company is likely to move forward with its appeal as quickly as possible. (94K WAV or 94K AIF)
Meanwhile, George Washington University Law School professor William Kovacic said that Judge Jackson could be removed from further involvement in the Microsoft case if an appeals court concludes that he is biased against the company, based on the strong wording of his ruling and statements he made in interviews after he issued the ruling. (134K WAV or 134K AIF). 
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