With the antitrust case against Microsoft Corp. slated to be turned back to
the U.S. Circuit Court for the District of Columbia in just two days, the
Redmond, Wash.-based software titan Tuesday upped the ante by petitioning
the U.S. Supreme Court to hear an appeal of the U.S. Court of Appeals for
the District of Columbia’s decision to throw out the lower court’s remedy to
break up the company, but uphold the lower court’s finding that the company
had indeed acted as an illegal monopoly.
In June, the appeals court threw out Judge Thomas Penfield Jackson’s remedy after finding that he had
acted improperly during the case by holding secret meetings with journalists
and making biased comments against the company.
Now Microsoft is arguing that Judge Jackson’s conduct should have
invalidated his findings of fact as well as his remedy.
The question the company posed to the Supreme Court is: “Whether the court
of appeals erred in not disqualifying the district judge as of the date of
his earliest known violation of 28 U.S.C. § 455(a) and the Code for
Conduct of United States Judges, thus requiring that his findings of fact
and conclusions of law be vacated.”
To add a little background to that question, Microsoft said, “The district
judge engaged in secret discussions with select reporters about the merits
of this case beginning no later than September 1999 and continuing over the
succeeding eight months. During that period, the district judge entered his
findings of fact, followed by his conclusions of law, and then a remedial
decree. The court of appeals held that the district judge’s course of
conduct flagrantly violated 28 U.S.C. § 455 and the Code of Conduct for
United States Judges and the district judge would have been immediately
disqualified had he not concealed his misconduct by requiring the reporters
to “embargo” their stories until after entry of judgment. The court
nevertheless disqualified the district judge “retroactive only to the
imposition of the remedy,” some eight months after the earliest known
Now the question is whether the Supreme Court will agree to hear the case.
For now it appears to be anybody’s guess. As recently as last week, Edward
C. LaRose, chair of the Antitrust & Trade Regulation Practice Group at
Tampa-based law firm Trenam, Kemker, Scharf, Barkin, Frye, O’Neill, &
Mullis, told InternetNews.com that he thought it unlikely either Microsoft
or the U.S. Department of Justice would seek to bring the case before the
“I don’t know if either side would petition the Supreme Court,” he said at
the time. “If either did, my guess is that the Supreme Court would not take
it at this point.”
He noted that the Supreme Court would likely prefer to allow the case to
return to the district court to play out there.
“We feel it’s a question that is right for Supreme Court consideration,”
said Microsoft spokesman Jim Dessler. But, showing that Microsoft is still
looking to settle the case if possible, he added, “We will continue to work
to resolve the continuing issues in the case through settlement.”
In related news, the company also filed a petition with the appeals court,
asking that it not take any action on the case until the Supreme Court
decides whether it will take the case.