Supreme Court Declines To Hear Microsoft Case

Without comment, the U.S. Supreme Court Tuesday denied Microsoft Corp.’s request to overturn a lower court’s finding that the company violated U.S. antitrust laws by maintaining an illegal monopoly on the market for PC operating systems.

On June 28, the U.S. Court of Appeals for the District of Columbia upheld a ruling by the U.S. Circuit Court for the District of Columbia that found Microsoft guilty of violating antitrust law. However, the Appeals Court also overturned Circuit Court Judge Thomas Penfield Jackson’s remedy — breaking the company into separate applications and operating system companies — citing misconduct on Judge Jackson’s part.

The Appeals Court found that Jackson had improperly given interviews about the case to reporters while the suit was ongoing. The Appeals Court said Jackson “made offensive comments about Microsoft officials” in the interviews.

That court returned the case to the District Court to revisit the remedy phase of the trial. The case has been handed to a new judge, Colleen Kollar-Kotelly, who has ordered intensive settlement talks with a Nov. 2 deadline. Kollar-Kotelly said that if no settlement emerges, she will begin remedy hearings on March 11.

But Microsoft felt Judge Jackson’s misconduct should have invalidated his findings of fact as well as his remedy. On Aug. 8, the company petitioned the Supreme Court to hear that possibility, saying “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 violation.”

The U.S. Department of Justice countered by saying legal precedent did not obligate the Appeals Court to throw out Jackson’s findings.

When the Appeals Court issued its ruling, 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 that it was unlikely the Supreme Court would be willing to hear the case, noting the court would prefer to allow the case to return to the district court to play out there.

Microsoft will have the option to petition the Supreme Court again once Judge Kollar-Kotelly makes a ruling.

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