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Microsoft on Monday told a federal appeals court that a district judge’s order breaking the company in half was the result of a legally shoddy trial presided over by an unethical and irresponsible judge. The company’s filing with the U.S. Circuit Court of Appeals for the District of Columbia is the first of several written arguments due over the next three months. In late February, Microsoft and its government foes, including the Justice Department, 19 states and the District of Columbia, will argue the case before the appeals court. Microsoft’s lawyers excoriated U.S. District Judge Thomas Penfield Jackson both for his procedural handling of the case, which Microsoft contends was unnecessarily hasty and slipshod, and for the numerous media interviews Jackson granted during and after the trial, along with several post-trial speeches. Microsoft says Jackson’s public statements violate the code of conduct for federal judges. The company is asking the appellate court to overturn Jackson’s final judgment altogether. But should the appellate court decide to send any part of the case back down to the district court, Microsoft said, the case should be transferred out of Jackson’s courtroom. “[Jackson's] extensive public comments about the merits of this case epitomize his disregard for proper procedure,” said Microsoft’s lawyers in Monday’s brief. “[His] public comments would lead a reasonable observer to question his impartiality and — together with other procedural irregularities — the fairness of the entire proceeding.” Jackson ruled on June 7 that Microsoft should be divided into two companies to address the “violence” he believed the company did to the marketplace by engaging in a series of anti-competitive acts against federal and state antitrust laws. One company would own the Windows operating systems and would be subject to a raft of temporary conduct restrictions. The other company would own everything else, including the Office suite of software applications and the Internet Explorer Web browser. Jackson stayed the breakup until the end of the appeals process. The breakup order was the final step in a two-year-old case brought by the government against Microsoft for allegedly using its monopoly in the Windows operating system to thwart competitive threats to that monopoly. “The judgment is well supported by the evidence during a 78-day trial, including thousands of pages of Microsoft’s own documents,” says Justice Department spokeswoman Gina Talamona. “We are confident in our case and look forward to presenting it to the Court of Appeals.” Microsoft had already notified the court that it intended to argue that Jackson’s ruling should be overturned because Jackson committed a host of procedural and legal errors. On Monday Microsoft again cited Jackson’s aggressive scheduling of the case and his willingness to allow the government to expand its scope and introduce what Microsoft calls “rank hearsay” evidence. The company’s lawyers also pointed to Jackson’s refusal to allow evidentiary hearings on the government’s breakup proposal, then adopting the proposal outright without citing any relevant case law, as further evidence of his impropriety. Even if the appeals court ignores the question of Jackson’s conduct, Microsoft says there are plenty of other arguments in its defense. The company’s lawyers took aim at the central issue of the case: They argue that Microsoft cannot be found to have illegally tied its Internet Explorer Web browser to its Windows operating systems. Microsoft points to a 1998 appeals court decision that overturned an earlier Jackson order prohibiting it from welding Explorer to Windows. The company also cites Jackson’s ruling that it was not guilty of “exclusive dealing” under the Sherman Antitrust Act. Microsoft is stressing that Jackson’s findings of illegal “attempted monopolization” and “monopoly maintenance” are not valid, because even Jackson himself found that rival Netscape Communications was not foreclosed from distributing its Navigator Web browser. “Our core point is the fact that antitrust laws are designed to do one thing — protect competition,” says Microsoft spokesman Jim Cullinan. “If they want to bring a business tort case, fine, but the whole point is that this is not about protecting Netscape.” “Friend of the court” briefs were also filed Monday by pro-Microsoft groups, including the Association for Competitive Technology and the Computing Technology Industry Association. The government is to file its reply brief on Jan. 12. Several pro-government “friends of the court,” including America Online, will also file briefs on Jan. 12. The states, which are currently due to file separately, have asked the court’s permission to file a joint brief with the federal government. Three of the court’s 10 judges have recused themselves from the case, and oral arguments are scheduled for Feb. 26 and 27 before the seven remaining judges. Whatever the outcome, the case is likely to be appealed to the U.S. Supreme Court, barring any settlement. Politics may yet play a role. A Bush administration would be likelier to cut a deal with Microsoft, or to walk away from the case if Microsoft wins at the appellate court. And the 1998 decision, made by a three-judge panel of this same appeals court, has long given Microsoft confidence that its appeal stands a good chance of success. Related articles from The Industry Standard Microsoft’s Appeals Brief Blasts Lower Court Microsoft to File Brief to Appeals Court News Flash: MS Antitrust Participants Act Rationally Copyright (c)2000 The Industry Standard

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