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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.”

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