MS/DOJ: Microsoft requests a stay on remedies

Microsoft filed the motion for a stay immediately after US District Court Judge Thomas Penfield Jackson released his final judgment ordering that the company be split in two and that behavioural remedies be imposed.

"The Final Judgment, which Microsoft intends to appeal promptly, will inflict grievous and irreparable harm on Microsoft, its 35,000 employees, its millions of shareholders, its thousands of business partners and the tens of millions of consumers around the world who rely on Microsoft's products," the company argued in the motion for a stay.

There is no urgency that requires the final judgment to take effect immediately, the company further argued.

The US Department of Justice (DOJ) and 19 US state attorneys general successfully sued Microsoft, contending the company has used its operating system monopoly to try to dominate other markets, notably internet browsers, and to thwart competition.

Judge Jackson is likely to deny Microsoft's motion for a stay, said Bill Kovacic, a law professor at George Washington University, who has followed the case closely. The judge will probably throw out the motion without a court hearing, Kovacic said in a phone interview yesterday.

"It is an understatement to say that his cover statement made it clear that he does not trust this company," Kovacic said of Judge Jackson's memorandum released with his final judgment that set forth the remedies he wants to impose on Microsoft.

Microsoft has continued its past business practices "and may yet do to other markets what it has already done in the PC operating system and browser markets", Jackson wrote on Wednesday. "Microsoft has shown no disposition to voluntarily alter its business protocol in any significant respect. Indeed, it has announced its intention to appeal even the imposition of the modest conduct remedies it has itself proposed as an alternative to the nonstructural remedies sought by the plaintiffs."

The company further "has proved untrustworthy in the past", Jackson added.

If Judge Jackson does indeed toss out the motion to stay the behavioural remedies, Microsoft can appeal that decision. "There is very little jurisprudence on this issue and the standards are not well tested," Kovacic said when asked about the precedent for the appellate court to rule in favour of the defendant.

Microsoft is likely to argue in any such appeal that the process allowed by Jackson regarding arguments on behavioural remedies was abbreviated, that he did not provide enough explanation for why he wants to impose the interim behavioural measures, and that the remedies produce an irreversible situation that could not be easily changed if the appeals court did eventually toss out Jackson's previous rulings.

Even so, Judge Jackson himself is not likely to be persuaded that he should grant Microsoft's motion to stay the remedies.

"I think," Kovacic said, "that you're likely to hear an announcement that there's a man walking on the surface of Mars before you hear an announcement that Judge Jackson has granted a stay on the behavioural remedies."

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Nancy Weil

PC World
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