Microsoft Appeal Could Take Years

BOSTON (06/07/2000) - The next phase in the Microsoft Corp. 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 U.S. 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, D.C., 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 Court 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 U.S. Department of Justice (DOJ) and 19 state attorneys general who filed the antitrust case against the software maker.

Besides appealing the breakup order, Microsoft also has said it will appeal Judge 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 today'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.

"There's not a great deal of law on this issue," Kovacic said. Courts tend to make a distinction between those remedies that create irreversible changes and those that leave business practices as they are. As such, the breakup -- or "divestiture" -- order undoubtedly will be delayed because if the appeals court were to decide that Microsoft did not violate antitrust law but the company already had been split, "that's a bit late to say, 'Oops, sorry,' and then put it back together," Kovacic said.

The company also is likely to argue that some of the interim orders for behavioral remedies could have the same effect on the company in terms of being difficult to reverse, he said.

If the appeals process goes through its usual paces, the Court of Appeals will first review the case. That is likely to begin with a review by a three-judge panel from the full 11 judge appeals court. The three-judge panel would be chosen through random selection.

The panel would hear from the government and Microsoft in a one-day session which typically lasts just one or two hours.

"The losing side (in that appellate review) will probably seek to have a review done by the entire Court of Appeals," said Mark Schechter, an attorney at Howrey & Simon in Washington, D.C. and a former DOJ official. A review by the full appellate court is not automatic.

To get through that phase of appeals will take at least six months, Schechter said. It is likely to require nine months to a year, Kovacic said.

On that track, the case could be through the appellate court by the middle of next year. That means that the case could be heard by the Supreme Court at its 2001-2002 session, which by law begins on the first Monday of every October.

With rare exception, each side will have 30 minutes to present its arguments to the nine Supreme Court justices, who will have read court documents and case law involved in the lawsuit at hand.

But a Supreme Court review is not a given and the justices could decide to decline hearing the case. On the other hand, if they do agree to take the case and that occurs in the session beginning next year then the earliest they would be likely to render an opinion would be the middle of 2002, Kovacic noted.

If the case somehow got stuck in a delay at the appeals court level, it could even take until the 2002-2003 term for the Supreme Court to get the case.

For example, one other track the case could take is if the appellate court, after considering the case, asks Judge Jackson for a modification of his ruling.

If in the end the Supreme Court hears the case, its opinion would establish antitrust case law for years to come. No matter what happens, the case already has been precedent setting, in Kovacic's view.

"I think it's one of the three or four most important cases in the history of the Sherman (Antitrust) Act, which takes us back to 1890," he said.

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