Supreme Court to mull Microsoft's appeal Friday

The U.S. Supreme Court is scheduled to enter into conference Friday when it will begin discussing whether or not to grant Microsoft's request for an appeal in its landmark antitrust case.

The panel of seven justices will meet to discuss a number of requests for legal review from Microsoft and others as it begins its October term. The software maker's appeal was scheduled last month to come before the Supreme Court in that private conference, according to court documents on the Supreme Court Web site.

During that meeting, the judges will decide whether the court should accept Microsoft's request for a review.

"If there's disagreement it might take them a few weeks to decide but usually they decide pretty promptly," said antitrust specialist Jim Kobak, an attorney with New York-based law firm Hughes, Hubbard & Reed LLC.

If the judges vote on Friday, the results of the vote could be announced as early as Monday; information regarding activity in Supreme Court cases typically is published each Monday after the court meets, according to the court's Web site.

The software maker first took its case to the Supreme Court on Aug. 7. It asked the panel of judges to overturn a June 28 ruling by an appeals court that upheld a lower court ruling that the software maker violated antitrust law with its monopoly in the market for desktop operating systems.

Microsoft has argued that District Court Judge Thomas Penfield Jackson, who first ruled against the company last year, should have been pulled from the case due to comments he made to reporters before delivering his ruling.

In its June ruling, the U.S. Appeals Court for the District of Columbia scolded Jackson for violating a judicial code of conduct when speaking to reporters from the New York Times and The New Yorker magazine about the case. In the same ruling, however, the Appeals Court upheld most of the lower court's finding that Microsoft used its monopoly power illegally to squelch competitors.

Microsoft argues that Jackson should have been removed from the bench as early as September 1999 when he first made public comments, in effect vacating any ruling he made after that date. The U.S. Department of Justice (DOJ) and the 18 states that are plaintiffs in the case have countered Microsoft's request for an appeal urging swift resolution of the case.

Now the Supreme Court is set to decide in on the issue, and legal experts say it is unlikely that it will take on Microsoft's appeal.

"I think the chances of the Supreme Court taking review of the case are very low," said Dana Hayter, an attorney with Fenwick & West LLP in San Francisco and a former antitrust lawyer with the DOJ. He noted that the high court doesn't typically take on cases while they are still proceeding in a lower court.

Kobak agreed. "I doubt that they would take it," he said. "It seems to me the issue in the appeal really has to do with the judge's conduct. The Court might be interested in that but a lot of the basic antitrust issues aren't posed (in the appeal)."

Kobak also said that the Supreme Court is less likely to take on Microsoft 's appeal because it would mean challenging a case that won by a unanimous ruling by the panel of appellate judges that the appeal aims to overturn. "The chances of getting (review) would be better if there was a good strong dissenting opinion, and in this case there wasn't one," Kobak said.

A new trial court judge, Colleen Kollar-Kotelly, has taken over on the next phase of the case to decide a remedy to impose on Microsoft. District Court Judge Kollar-Kotelly ordered the two parties into intense settlement talks Friday, urging a quick resolution to the legal bout.

Microsoft and the state and federal governments have until Oct. 12 to work on a settlement on their own, the court ordered. A mediator will take over at that date if the two sides can't agree on a conclusion. If no settlement is reached by Nov. 2, the court set a schedule that would take the case well into 2002.

"The court expects that during this time the parties and counsel will fully expend and concentrate all of their resources upon resolving these cases through a fair settlement for all parties," the court wrote in its order Friday.

If the Supreme Court does decide to hear the case, it could put the lower court proceedings on hold , according to Hayter.

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Matt Berger

Computerworld

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