- The US Supreme Court, for the moment, has taken a pass on announcing whether it will hear Microsoft's appeal of the government's antitrust case.
Trial observers had thought that the Supreme Court would announce that it would hear the appeal Friday. The announcement would have been in the form of an order list which was issued Friday, but no mention of the case appeared in the list . Order lists say which cases the court will hear and which it will not. The court has been asked to take a direct appeal in the government's antitrust case against the software maker. Though the case was not included in Friday's order list, there is still the possibility that it might appear in an order list during the next month.
The Supreme Court could reject taking the case on direct appeal and order that the U.S Court of Appeals for the District of Columbia hear appeals arguments first. Many legal scholars have said they believe that the Supreme Court will do just that. Microsoft also has argued strongly in favor of having the lower court hear the appeals first and has filed legal briefs contending that the nine Supreme Court justices would benefit from having the appeals court wade through the issues first.
US District Court Judge Thomas Penfield Jackson determined in the case that Microsoft is a monopolist and has used that power in the operating system market to illegally squelch competition and make inroads into other areas, notably the market for Internet browsers. He then ordered that the company be broken into two entities, with one focused on operating systems and the other on software applications. Jackson also ordered that a set of behavioral remedies be imposed on Microsoft, but put those remedies on hold until the appeals process runs its course.
Microsoft appealed his rulings and then Jackson sent the appeal directly to the Supreme Court, bypassing the lower appeals court.
The US Department of Justice, 19 state attorneys general and the District of Columbia filed the federal lawsuit against Microsoft in May of 1998. However, government investigations into the company date back to 1991, when the US Federal Trade Commission looked into allegations from competitors that Microsoft had an unfair advantage because it makes software applications and operating systems on which those applications run.
The government has argued that the case should be on the appeals "fast track" and go to the Supreme Court because there is compelling public interest in having the matter resolved. Microsoft contends that the government has made a "newfound reading" of the Expediting Act, which allows for direct Supreme Court review of antitrust cases deemed "of general public importance in the administration of justice."
The Supreme Court session begins the first Monday in October. The court, which has nine justices appointed for life by the president, typically receives some 7,000 petitions during its annual session. Though Friday's order list did not include the Microsoft appeal, the court's decision about whether to take the case could be released in a future order list.
No matter what the court decides, Microsoft apparently is preparing for a possible appearance before the Supreme Court. In July, the company said that it had hired attorney Carter Phillips and his Washington, D.C.-based firm Sidley & Austin, which has experience in Supreme Court matters. Phillips and his firm will work with Microsoft's lead trial counsel, the firm of Sullivan & Cromwell.
(Additional reporting by Gretel Johnston in Washington.)