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Score Round 1 of the appeal of United States v. Microsoft Corp. to the defendant. With the Supreme Court on Tuesday turning away from the government’s most high-profile antitrust suit, Microsoft succeeded in getting its argument before the bench it likes best — the U.S. Circuit Court of Appeals for the D.C. Circuit. What’s more, despite the added step, indications are that Microsoft may get a relatively swift result in this next round of the case. The delay in reaching a final Supreme Court ruling will probably be surprisingly short, in the range of a year or so. Three sources close to the appeal hint that the D.C. Circuit appears prepared to move very quickly to get the case decided. The appeals court has already received an official notice from the Supreme Court handing the case back down the ladder, says Mark Langer, clerk of the court. And late Tuesday afternoon the circuit issued an order asking Microsoft to propose a briefing schedule by Oct. 2 and the government three days later. Says one D.C. lawyer familiar with appellate procedure: “The circuit can move quite rapidly. It’s not as if the parties haven’t had a chance to brief the issues.” The lawyer, who asked not to be identified, says oral argument before the circuit could occur as early as February, with a decision to follow in the summer, and the distinct possibility of a new request for Supreme Court action by the fall. The circuit already signaled its interest in speeding up the Microsoft matter when it ordered last June that the case go directly to a hearing before all its judges, rather than be heard first by a three-judge panel. In this case, that means an argument before seven judges. Three of the 10 circuit judges — Laurence Silberman, Karen LeCraft Henderson, and Merrick Garland — announced in June that they have recused themselves. A Microsoft spokesman expressed the company’s pleasure with the Supreme Court’s action and took the position that review at the circuit will not cause unneeded delay. “Microsoft is confident of our case on appeal, and we look forward to presenting our arguments to the U.S. Court of Appeals,” said Vivek Varma, the company’s director of public affairs. “We have said all along that we’d like to get this case behind us as soon as possible, and we think that having the court of appeals review the case brings us closer to the end of this process.” In a statement, Justice Department spokeswoman Gina Talamona said, “We look forward to presenting our case to the Court of Appeals as expeditiously as possible.” A D.C. lawyer not involved with the case said the high court’s ruling is “95-plus percent procedural” and shouldn’t be seen as a tip-off about the justices’ view of the merits of the antitrust case. “The Supreme Court looked at a big case with a big record and said, ‘Why jump into it? Let the court of appeals take a look at it,’ ” said this lawyer. “ I don’t think the court did that because of any predisposition on how it would eventually rule.” Last April, U.S. District Judge Thomas Penfield Jackson found that Microsoft had used its dominant market share in the computer operating systems market to illegally attempt to gain a monopoly in the Web browser market. In June, he ordered the breakup of the company into two parts. He put on hold, however, both the breakup and restrictions on Microsoft’s business practices until appeals are over. Microsoft’s designated high-court expert, Carter Phillips, isn’t going to leave the case just because it’s now in a different court. Somewhat ironically, Phillips’ first assignment for Microsoft as a Supreme Court maven was to keep the case out of the Supreme Court, a task at which he succeeded. “I’ll continue to work on the appeal as it goes back to the D.C. Circuit,” says Phillips, a partner at the D.C. office of Chicago’s Sidley & Austin. “I’m part of the appellate team.” Jonathan Groner is editor at large of Legal Times.

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