Microsoft filed a brief in court yesterday strongly opposing the government’s attempts to send the antitrust case directly to the US Supreme Court.
If approved, the government’s fast-track procedure would bypass the US Court of Appeals, which has been a friendly forum for Microsoft in the past.
The appeals court has already accepted the case. Microsoft’s brief claimed "the Supreme Court may well not accept jurisdiction", and sending that the case to the Supreme Court may only delay and complicate the appeals proceedings.
Break-up opposition On June 7, Jackson ruled that Microsoft should be broken in two and accept various business restrictions to counter what he found to be its anti-competitive business practices. Microsoft opposes the break-up order, and the current battle is over the appeals process.
Earlier today, the Court of Appeals issued an order that sets a briefing schedule to consider the issue of whether the business-conduct restrictions imposed by Jackson, against Microsoft, should take effect September 5 as he ordered, or be blocked during the appeals process.
The appeals court agreed to accept Microsoft's June 13 filing, which asked for a delay or "stay" of the conduct remedies, and rejected the Department of Justice's effort to toss out the company's request. The DOJ had described Microsoft's 39-page filing as "premature" and urged the appeals court to step aside while the government tries to move the case directly to the Supreme Court.
Complex issues If Jackson does send the case directly to the Supreme Court, the appeals court agreed to step aside. Some legal observers predict the Supreme Court justices will send the case back to the appeals court so it can sift through the complex issues first.
The appeals court has already agreed to hear the case with seven judges, instead of the usual three, because of its importance. Arlen Langvardt, a professor of business law at Indiana University, said: "The Supreme Court might be a little less inclined to agree to take the case if it thinks that seven judges from the Court of Appeals would be hearing it."
Bill Neukom, Microsoft's executive vice president for law and corporate affairs, maintains that the appeals court is the next logical step for the case. He said: "In the past 26 years, only two cases have bypassed the appeals court and gone directly to the US Supreme Court, both of those cases involved very narrow issues of law, and the parties were united in seeking immediate US Supreme Court review."