(April 3 ) – “When Joel I. Klein filed the government’s antitrust case against Microsoft nearly two years ago, he sent courtesy copies of the 53-page legal complaint to a number of appellate and Supreme Court judges,” writes Stephen Labton in today’s New York Times.
“The move by Mr. Klein, the assistant attorney general in charge of the antitrust division, appeared to reflect the Justice Department’s judgment that — for all of the importance of the trial before Federal District Judge Thomas Penfield Jackson — the fate of the case would ultimately be in the hands of a higher authority.
“Today, Judge Jackson issued his long-awaited conclusions of law, and it was clear from both the scope and tone of the decision that the judge shared Mr. Klein’s strategic vision about the importance of trying to build legal arguments that could survive appeal.
“While the judge’s sweeping factual conclusions last November that Microsoft was a monopolist had practically guaranteed a ruling that the company had violated federal antitrust law, the decision today was somewhat more measured than had been anticipated. Rather than take a blunderbuss approach, Judge Jackson accepted two of the central tenets of the government’s case and rejected a third.
“He also took on a federal appeals court on a central issue in the case, involving the tying of Microsoft’s Windows operating system with its Internet Explorer Web browser. The judge said that a three-judge appeals panel had overlooked Supreme Court precedent in 1998 when it reversed him at the outset of the Microsoft proceeding.
“Hardly endearing to the United States Court of Appeals for the District of Columbia Circuit that will also hear the appeal in the latest case, the comments by Judge Jackson may ultimately find a more receptive audience at the Supreme Court. But at the same time, the comments are almost certain to be seized by Microsoft as an example of how the judge was unable to follow the instructions of the appeals court. But the appeals court in Washington is often deeply polarized over high-profile legal issues, and it is difficult to predict how it will react to Judge Jackson’s decision. Indeed the last Microsoft appeal in the case split one panel 2 to 1. That legal uncertainty, in fact, may ultimately spark further settlement talks.
“Judge Jackson’s conclusions that Microsoft repeatedly violated the Sherman Antitrust Act may add new impetus for the government to seek to have its proposed remedies imposed on Microsoft even before the case reaches the appellate stage. Government officials today declined to discuss what remedies they would propose. Nor would they discuss whether the government would oppose an effort by Microsoft to have any remedies postponed until after the case is reviewed by higher courts, a process that may take another two years.