Microsoft Judge Seeks ‘Fast Track’ for Remedies
The judge who found Microsoft Corp. guilty of antitrust violations told lawyers he wants to consider remedies on a “fast track” and may hand the appeal directly to the Supreme Court, according to a transcript of his meeting Tuesday in chambers.
U.S. District Judge Thomas Penfield Jackson proposed a schedule under which the Justice Department, 19 states and the District of Columbia would submit proposed remedies and supporting evidence within 30 days. Microsoft’s response and any questioning of witnesses would take place during a 60-day period.
After that, Jackson would make his decision on what remedies should be imposed to curb what he found to be Microsoft’s abuse of its monopoly over personal computer operating software.
If Jackson were to do so, it could represent a significant blow to the software giant. Microsoft has said it expects the appeals process to drag on until at least 2002, and analysts say the company could use that time to cement its position in the Internet industry before a remedy is put in place.
“What I do not want to do is have caused this thing to drag on through a number of months of additional proceedings,” Jackson told the lawyers gathered in his chambers.
In choosing not to settle the case, Microsoft decided to buy time, said Robert Livak, director of economic studies at the Brookings Institution, a Washington think tank. In the time it would take to exhaust its appeals, Microsoft could see a presumably more business-friendly Republican in the White House.
Jackson said he would like to put consideration of sanctions on “a genuine fast track which would enable us to conclude the remedy phase within 60 days of yesterday.”
The judge also said he would consider certifying the appeal of his decisions directly to the Supreme Court, thereby bypassing a federal appeals court in Washington that overruled him in 1998 in an earlier Microsoft case.
The judge said he would invite the government to move for Supreme Court review under a 1974 law that provides for high-court consideration of antitrust cases that are in the national interest.
Microsoft has expressed confidence that Jackson’s latest ruling would be overturned on appeal and has repeatedly cited the appeals court’s 1998 ruling.
“We look forward to a full appellate review of this case and this ruling,” Microsoft spokesman Jim Cullinan said.
Jackson has ruled that the world’s largest software company illegally defended its Windows monopoly, illegally tied its Internet Explorer Web browser to Windows and illegally sought to monopolize the browser market.
Jackson said he also wanted both sides to submit the last offers they made to each other in mediation efforts that collapsed over the weekend. The settlement efforts were mediated by a federal appeals judge, Richard A. Posner. Jackson recruited Posner in November, after issuing scathing findings of fact about Microsoft’s practices.
Both sides expressed reservations about submitting their last proposals in mediation. Microsoft lawyer John Warden said he would have to consult with his client before agreeing to such a measure.
“What troubles me a little bit about the introduction of the mediation proposals is that inevitably both sides in mediation approach the process differently than you would in terms of what you think an appropriate judicial order would be,” said David Boies, the Justice Department’s chief trial lawyer.
Something “we might ask for in mediation is something that we might have some dubiety about” in litigation, Boies said.
Jackson said he would also consider having a proceeding on remedies that would “replicate the procedure at trial,” under which both sides submit written testimony of witnesses, who are then cross-examined.
