Obscure Law May Complicate Microsoft Appeal
If the company does appeal, a little known law called the Antitrust Expediting
Act, which applies to antitrust actions brought by the U.S. government, will
cause the defense some problems.
The Expediting Act will allow the Justice Department to seek immediate
review at the U.S. Supreme Court, vaulting over sympathetic judges from the
federal appeals court in Washington, D.C., who ruled in Microsoft's favor in
June 1998. That ruling used stark language to proclaim that courts should not
get into the business of designing software.
Beyond losing access to that potentially sympathetic court, Microsoft faces
an even greater problem from the Expediting Act. It precludes a party from
appealing until a "final judgment" is issued ? in other words, until Judge
Jackson has his say not only on the law's application to his findings of fact,
but on what remedies should apply to Microsoft's antitrust violations.
Microsoft would like to avoid that phase so that it can keep arguing the points
of law in its favor without having to debate particular punishments.
Microsoft's legal team could argue that the definition of "final judgment" is
vague under the Expediting Act. And the act does not apply to the 19 state
attorneys general who are co-plaintiffs in the case against Microsoft.
If Judge Jackson then severed the state suit, Microsoft could pursue an
interim appeal, forestalling the remedies phase until an appellate ruling had
been handed down.
But the federal government will certainly oppose that move. "That would just
defeat the plain purpose of the statute," said a source close to the case.
Meanwhile, the Justice Department is planning its own appellate strategy.
Joel I. Klein, the department's antitrust chief, recently hired his former law
partner, Richard G. Taranto of D.C.'s Farr & Taranto, to advise him on
appellate advocacy issues.
Mr. Taranto has argued 16 cases before the U.S. Supreme Court, eight of
them at his law firm, and eight as assistant to the solicitor general from 1986
to 1989. He clerked for Justice Sandra Day O'Connor and Judge Robert Bork.
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