December 29, 2000, 9:20 AM — THE NEXT PHASE in the Microsoft antitrust case is the appeals process, which will take months at the least and is likely to take well more than a year before completion. If the case is appealed all the way to the Supreme Court -- the last stop in the nation's legal process -- law experts say that it will set the standard for federal antitrust case law for decades to come.
But that's getting ahead of things. The first step is for Microsoft to officially file an appeal. That process can begin with a notice of appeal, which signals the company's intention to appeal. Such a notice would precede the filing of actual appellate briefs, which does not have to be done immediately.
"They don't have to do that on day one," said Bill Kovacic, a law professor at George Washington University, in Washington, who has followed the case closely. "The reason that they might take a little bit of time to file that notice of appeal is that the option that the government might pursue to get immediate Supreme Court review is triggered by the filing of that notice."
U.S. District Judge Thomas Penfield Jackson, who has presided over the case thus far, has said he is likely to suggest that government plaintiffs file a motion asking the Supreme Court to take the case immediately, skipping the U.S. Court of Appeals for the District of Columbia. However, such "fast track" cases are rare, occurring when the Supreme Court decides that completion of a legal matter has such compelling public interest that months should be cut out of the process.
Kovacic and others think that is unlikely to happen in the Microsoft case, important as it may be.
"They tend to prefer in a case of this magnitude to have the intermediate appellate court sift through the issues and take a first look at them," Kovacic said.
From the time that Microsoft files its notice of appeal, the government will have 15 days to ask the Supreme Court to take the case. That request would have to come from the Department of Justice and 19 state attorneys general who filed the antitrust lawsuit against the software maker.
Besides appealing the breakup order, Microsoft also has said it will appeal Jackson's findings of fact and conclusions of law, two separate court rulings. In the findings of fact, Jackson ruled that the company has a monopoly in operating systems. The conclusions of law determined that the company has illegally used its monopoly in an attempt to dominate other markets, notably Internet browsers, and to squelch competition.
As for appealing Wednesday's remedies ruling, the breakup order is automatically stayed until the appeals process is over. Kovacic thinks that Microsoft also is likely to quickly ask the appeals court to suspend implementation of some interim remedies or behavioral changes ordered by Jackson.