X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The judges of the U.S. Court of Appeals for the D.C. Circuit sounded bothered with the Microsoft Corp. last week, when they refused to delay the government’s antitrust case against the software giant. Last month the D.C. Circuit unanimously ruled that the company is a monopolist. On Aug. 17, the court offered sharp language in an unsigned, unanimous order rejecting Microsoft’s request for a stay on a new remedy trial while it petitions the Supreme Court to take the case. “It appears Microsoft has misconstrued our opinion, particularly with respect to what would have been required to justify vacating the district court’s findings of fact and conclusions of law.” Though the substance of the order did not strike appellate experts as unusual — Microsoft can now ask the Supreme Court directly for a stay — they did find the language fairly stern. “It would have been simple for them to issue a form order, that the motion was denied,” says antitrust expert David Balto of the D.C. office of White & Case. The court’s response, Balto adds, “is a pretty strong signal that [the underlying decision] was not a close call.” Says Professor Robert Lande of the University of Baltimore School of Law: “It’s as if they’re getting annoyed with Microsoft.” Lande is the director of a D.C.-based antitrust law group that has been critical of Microsoft. James Gattuso of the Competitive Enterprise Institute, a free market organization sympathetic to the company, says, “It’s not surprising the court of appeals would stand by its opinion.” He adds, “I think Microsoft probably knew that a stay was a long shot.” Microsoft spokesman Jim Desler said he wouldn’t read anything into the court’s language in the order. “We’re prepared to move ahead” with the case, he said, while Microsoft awaits the Supreme Court’s decision on certiorari, which could come in the next few months. A spokeswoman for the Justice Department said the government was pleased with the circuit’s ruling and is ready to proceed. In the underlying decision, the D.C. Circuit unanimously agreed with Microsoft that Judge Thomas Penfield Jackson appeared biased by discussing the case with reporters during the trial, and that he improperly decided on a remedy for the antitrust violation — a breakup of the company — without a hearing. While the judges threw Jackson off the case, they refused to vacate his central holding — that Microsoft had broken antitrust laws. The D.C. Circuit sent the case back to the district court, where a new judge, selected at random, will decide the remedy for Microsoft’s misdeeds. That new judge has not been picked. Microsoft, however, has argued that since Jackson’s first media interview took place before he issued his findings of fact and conclusions of law, the D.C. Circuit should have vacated Jackson’s holding altogether and ordered the new judge to start from scratch. In its Aug. 17 order, however, the D.C. Circuit said that Microsoft had “failed to demonstrate any substantial harm that would result from the reactivation of proceedings in the district court during the limited pendancy of the certiorari petition.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.