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DOJ replies to Microsoft
August 15, 2000: 2:35 p.m. ET

Government urges Supreme Court to hear software maker's antitrust appeal
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NEW YORK (CNNfn) - The U.S. government urged the Supreme Court Tuesday to consider Microsoft Corp.'s appeal of antitrust violations on an expedited basis, rather than have the case go first to a lower appeals court.

The Justice Department said in a filing that the case had "immense importance to our national economy" and satisfied legislation allowing direct appeal of major antitrust cases. Justice wants the Supreme Court to hear the case because it could result in a quicker resolution of the government's antitrust action against the software giant, and because the U.S. Court of Appeals in the District of Columbia has been friendly to Microsoft in past antitrust cases.

Last month, Microsoft (MSFT: Research, Estimates) urged the Supreme Court to let the case be heard first by the U.S. Court of Appeals, which ruled in Microsoft's favor in a related 1998 government-initiated antitrust case. Microsoft argued in that filing that the case is too legally and factually complex for the Supreme Court to review.

graphicIn its Tuesday filing, the Justice Department said that Microsoft's rationales for denying direct review by the Supreme Court are "not convincing."

"This Court regularly decides complex cases, and, from 1903 to 1974, the Court routinely decided all such antitrust appeals," Justice said in its filing. "The Court will not be unduly burdened by undertaking to resolve the singularly important appeal in this case - the first such appeal in 17 years."

Law allowing direct appeal

Between 1903 and 1974, the Supreme Court directly reviewed all appeals in civil antitrust cases brought by the U.S. government. In 1974, Congress decided that allowing direct appeal in all such cases was a burden to the Supreme Court. Thus, Congress gave appeals courts jurisdiction over routine appeals. However, it also passed a law called the Expediting Act to enable the Supreme Court to hear a direct appeal in cases where "immediate consideration of the appeal by the Supreme Court is of general public importance in the administration of justice."

In its filing Tuesday, the Justice Department said that the Microsoft case meets that requirement, and is "especially important to the rapidly developing high-technology sectors, which need to know how they will be affected by the remedies resulting from this case and, more generally, how this Court's antitrust jurisprudence applies to a dominant firm in their marketplace."

"The public interest requires prompt and final resolution of the issues on appeal, both so that effective remedies can be put in place to restore competitive conditions and protect consumers and so that the computer and software industries can plan for the future," the filing said.

The government has invoked the Expediting Act in only two previous cases in the past 26 years. Both of those requests involved an antitrust suit against AT&T and its subsidiaries and, in each instance, the Supreme Court accepted direct review.

District Judge Thomas Penfield Jackson found in June that Microsoft had used its monopoly power in personal computer operating systems to compete illegally, and said the company should be split in two to prevent future violations.

Microsoft is scheduled to make a reply to the government's filing on August 22. The Supreme Court is on recess until October 1, although it may decide whether it will hear the Microsoft appeal before that date.

"We continue to believe that the Supreme Court would benefit from an initial review of this very complex and technical appeal by the Court of Appeals," said Microsoft spokesman Jim Cullinan. "We look forward to responding more fully in our filing next week."

Microsoft's 78-day trial generated a record consisting of 1,815 pages of written direct testimony, 13,466 pages of trial transcript and 2,695 trial exhibits. Much of the evidence relates to technical issues of software design. Back to top

-- Reuters contributed to this story