Update: Appeals court judges take Jackson to task

(February 27, 2001) WASHINGTON -- The U.S. Court of Appeals continued to express strong doubts today about the federal government's antitrust case against Microsoft Corp., and the judges were unequivocal in their condemnation of trial Judge Thomas Penfield Jackson for out-of-court comments he has made about the case.

"I don't discuss cases with my best friends," said Chief Judge Harry Edwards. "That's the way we operate. We're not supposed to do that." His comments came as the Washington-based appeals court completed two days of oral arguments on Microsoft's appeal of Jackson's ruling last spring that the software vendor violated antitrust law and should be split into two separate companies.

Although both sides again faced tough questions from the panel of seven judges, the attorneys representing the U.S. Department of Justice (DOJ) faced the tougher obstacles -- as they had at yesterday’s session. And it seemed clear by the end of the hearing that Jackson's breakup order could have trouble surviving the appeals process intact. Members of the appeals court raised numerous questions about the ruling -- and about the judge himself.

The appeals court judges, who began their proceedings in the case in the fall, were obviously sympathetic today to Microsoft's contention that comments made by Jackson in speeches and interviews since the trial ended last year were out of bounds and constituted possible violations of the judicial code of ethics.

Among the incidents cited by Microsoft was one in which it said the U.S. District Court judge was quoted comparing the company's executives to gang members convicted of murder. Microsoft attorney Richard Urowsky said Jackson's comments demonstrated bias and gave the appeals court legal grounds to throw out his decision.

Following Urowsky's argument, several of the appeals court judges expressed concern that Jackson's comments had tainted public perceptions of the legal system. Even assuming that Jackson ran the antitrust trial in a fair and neutral way, Judge David Tatel said, members of the public may well "wonder whether this judge is biased against the defendant."

The DOJ also ran into potential trouble today on its claim that Microsoft tried to monopolize the Web browser market. The evidence for that charge depends heavily on an infamous mid-1995 meeting between executives from Microsoft and Netscape Communications Corp., at which it was alleged that Microsoft essentially attempted to reach an agreement limiting Netscape's future development efforts for the soon-to-arrive Windows 95 operating system.

For Microsoft to have succeeded, Tatel argued, Netscape Navigator would have had to fail as a browser, Microsoft's Internet Explorer would have had to take over the market and there would have had to be barriers to entry against other vendors. "I don’t see anything in the record at all that would suggest there is aa dangerous probability of all those three things happening under those circumstances," he said.

David Frederick, an attorney representing the DOJ and 19 states that joined in the suit against Microsoft, argued that the company was attempting to eliminate Netscape as a potential competitive threat.

But Edwards challenged the government's contention that Web browsers are a separate market from the operating system business, accusing the DOJ of using "sleight of hand" in making its claim. "It's a hard hill you have to climb," Edwards said to Frederick at one point.

On the issue of the remedies that were ordered by Jackson, Microsoft attorney Steven Holley was given almost free rein to outline the company's criticism of the breakup order and a decision by the judge not to hold a special hearing on the matter before approving the government's request that Microsoft be split in two.

Holley was asked only occasional questions and wasn't challenged on any of his major points, including a charge that Jackson's order was "a clear abuse of discretion" and that the breakup order "is entirely out of proportion to the antitrust violations found by the District Court."

Frederick, on the other hand, was peppered with questions about the breakup order, the lack of a special hearing and the reasons Microsoft should be split into two separate companies -- one for its operating systems, the other for the rest of its software products. "This case is about using two arms to strangle a nascent competitor -- using the applications arm to protect the operating system monopoly arm," Frederick said in response.

But Appeals Court Judge Douglas Ginsburg clearly signaled that the breakup order is in jeopardy. Noting that several members of the panel expressed considerable doubt yesterday about the government's claim that Microsoft had illegally tied Internet Explorer to Windows in an attempt to thwart competition, Ginsburg today questioned whether Jackson's ruling could stand up if the tying claim was overturned.

This story, "Update: Appeals court judges take Jackson to task" was originally published by Computerworld.

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