To All: Jackson shoots self in foot according to all liberal legal profs:
Experts: Microsoft May Have Basis For Appeal
(05/25/00, 8:00 a.m. ET) By Mary Mosquera, TechWeb News
WASHINGTON -- U.S. District Judge Thomas Penfield Jackson dealt Microsoft a stunning blow Wednesday when he said he contemplated "no further process" in the remedy phase of the trial. But some antitrust attorneys say his denial of more deliberation could serve as the basis for an appeal by the company.
Jackson surprised the packed courtroom when he asked the Department of Justice to file by Friday a clean copy of its breakup remedy reflecting minor changes from the proceeding. Microsoft will have 48 hours in which to comment on the remedy.
Jackson is leaning toward a structural remedy, and he is taking a serious risk by limiting the process, according to George Washington University law professor William Kovacic. "To take this shortcut, I find it breathtaking," he said. "He's contemplating the restructuring of one of the world's most extraordinary companies. It took up not even one day of his time. Isn't it worth at least a month to get this right?"
Microsoft (stock: MSFT) had asked for a few weeks to several months, depending upon the remedy, to gather evidence from professors, economists, and investment bankers who supported the government's breakup proposal, and from its own experts.
"It is clear that the judge is going to enter an order relatively quickly, and we will then be in the appellate process," said John Warden, lead Microsoft trial attorney.
A remedy judgment is on the fast track, probably in one to two months, said Robert Lande, law professor at the University of Baltimore. Jackson was "not committing to but seriously considering" the government's breakup proposal, Lande said. He had expected Jackson to give Microsoft a fair chance to gather evidence to argue divestiture to increase the survivability of his judgment on appeal.
"Microsoft will have an issue for appeal, especially if he orders a breakup," Lande said.
Another attorney said judges are acting within their rights when they speed remedy processes. "But given the extraordinary remedy being proposed, it doesn't make sense that Jackson is running this through with blazing speed," said Hillard Sterling, antitrust attorney with Gordon & Glickson, Chicago. "He seems to be ready to face his demons in the appellate process."
Sterling said Microsoft might fare better with an argument focusing on the lack of necessity or legal support for a breakup. The remedy must be narrowly tailored to address the specifically identified harms, he said. A breakup goes far beyond what is reasonably necessary to address government claims, which are largely centered on anti-competitive browser practices. Much of the government's evidence was introduced to support its claims regarding the browser -- not to establish independent antitrust violations, Sterling said.
The government has failed to show causal connection between breaking up Microsoft and enhancing competition, he noted. "This relationship is nebulous at best. There is little if anything that competitors gain merely by virtue of a broken Microsoft. Consumer benefits are even more tenuous under a breakup." The government has not shown that separating Microsoft into separate companies will result in lower prices or increased competition, Sterling said.
JFD |
