MS/DOJ: Judge allows more time for briefs

The judge hearing the Microsoft antitrust trial on yesterday granted the DOJ an opportunity to respond to some of the points in Microsoft's latest response to the government's proposal to split the software company in two.

US District Judge Thomas Penfield Jackson issued an order setting Monday as the deadline for the response from the DOJ and the 19 states that sued Microsoft for antitrust violations more than two years ago. The request for an opportunity to file the response came from government attorney David Boies during a conference call yesterday. Microsoft's latest response was supposed to be the final filing before the judge's ruling.

Boies told Jackson that some of the proposals in Microsoft's latest response, filed with the court on Wednesday, "seem to make some sense to us, and we would like to go through those in detail and to give the court our view", according to a transcript of the call provided by the court. The DOJ response would "take their points . . . and try to advise the court of our agreement and why we agree to them".

The transcript did not elaborate further on what points the DOJ agreed with.

The DOJ also would address points in the filing that it disagrees with, said Boies, who added that the DOJ had spoken with Microsoft attorney John Warden about the request.

Warden, who was also on the conference call, told the judge he would also like to have an opportunity to respond to whatever the government files. He then agreed to Jackson's suggestion that Wednesday be set as the deadline for Microsoft's response.

Microsoft spokesman Jim Cullinan said the government requested another chance to respond because its proposal is "vague, ambiguous and sloppily written". Microsoft raised a number of points that were not addressed in the proposed breakup about the process the government says should be used, Cullinan said. The spokesman declined to speculate on what points the government agreed with.

Microsoft's response on Wednesday repeated its criticism that the government's proposal to break up the company is extreme and out of proportion to the judge's findings in the case.

Jackson has signalled that he would like to move quickly toward issuing his ruling in the case, saying he was "not contemplating any further process" in the trial. Prior to his order yesterday, there had been speculation that Jackson's ruling could come this week. The speculation was fueled by Jackson's rebuff of Microsoft's plea for more time to defend itself against an April 28 recommendation from the DOJ that Microsoft be split.

The DOJ's April 28 proposal asked Jackson to split Microsoft into two separate companies -- one focused on the Windows operating system and the other on software applications and Microsoft's internet properties -- as a way of curbing the company's behaviour. The DOJ was joined in its breakup request by 17 of the 19 US states that are also plaintiffs in the case and the District of Columbia.

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