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Technology Stocks : How high will Microsoft fly? -- Ignore unavailable to you. Want to Upgrade?

To: John F. Dowd who wrote (46578)	6/13/2000 6:55:00 PM
From: Charles Tutt	Read Replies (2) \| Respond to of 74651

First, I never said they picked anything by lottery; I think you have me confused with someone else. Second, what I find unusual is the report that the Appeals Court "took" the case and apparently decided to go straight to en banc hearing -- I thought appeals were as a matter of right and were normally before a three judge panel. Third, I sincerely doubt there will be a reversal of this case; if there is, I expect it to be only partial and to merely result in another trial or additional hearings before Judge Jackson. But that's all JMHO and certainly not a legal opinion.

To: John F. Dowd who wrote (46578)	6/13/2000 6:56:00 PM
From: Ian Davidson	Respond to of 74651

From the WSJ: Appeals Court Says Full Panel Will Hear the Microsoft Case A WSJ.COM News Roundup The U.S. Court of Appeals for the District of Columbia signaled its desire to review the decision in the government's antitrust lawsuit against Microsoft Corp., issuing an extraordinary and surprising order late Tuesday that the case be delivered to the full appellate panel. In the order, Chief Judge Harry Edwards cited the "exceptional importance" of the case in getting the matter before the 10-member panel. (A number of the judges are recused from the case.) The move to have the full appeals panel review the case is equally extraordinary, according to legal experts, signaling that board's strong desire to handle the appeals phase of the case. That decision came as a victory for Microsoft, as it makes it far less likely that the Supreme Court will accept the case for expedited review -- something the government had sought. The court said it was acting "in view of the exceptional importance of these cases." Noting that three of its 10 judges are disqualified from hearing the case, the court said all remaining seven judges would hear the appeal. With that many disqualifications, the court said, a hearing by three judges followed by a rehearing by the entire court would be impractical. The government had no immediate comment on the move. The order came as a surprising victory for Microsoft and capped a day marked by a flurry of legal filings and maneuvering by the Redmond, Wash., software giant and the Justice Department and 17 states, its antagonists in the landmark antitrust case. Seeking Different Venues The two sides' legal duel, which began late last week and intensified Tuesday, dealt with where the case will land. The government wanted the case handed to the Supreme Court for expedited review, and battled to keep any aspect of the case out of the U.S. Court of Appeals here. That court handed Microsoft its most significant victory in the antitrust struggle two years ago when it overturned Judge Jackson's orders in an earlier part of the case; Microsoft, understandably, tried just as hard to get any or all of the case into that court. To that end, Microsoft filed a 39-page brief earlier Tuesday asking the appeals court here to take over the matter. Company lawyers outlined their plan to "present an overwhelming case for reversal" of U.S. District Judge Thomas Penfield Jackson's ruling that the company broke federal antitrust laws and must be split in two as a remedy. The lawyers said the appeal would be based "on an array of serious substantive and procedural errors that infected virtually every aspect of the proceedings." In a statement, Microsoft said it would prefer to have the lower court handle its "winning legal case," as Bill Neukom, the company's general counsel put it. "Given the enormous procedural and factual irregularities throughout this trial record, we believe the court of appeals is the appropriate next step," he said. Microsoft's President, Steve Ballmer, said the company is "looking forward to the appeals process" and reiterated his confidence that the appellate board will rule in the Microsoft's favor. "We believe the judgment is both wrong and unfair." Legal Drama Began Last Week The legal drama began with last week's request by Microsoft for a stay of interim restrictions to be placed on its business practices while the software giant is broken into two companies. Those restrictions are due to take effect in early September. On Monday, the Justice Department argued that delaying such interim restrictions "would greatly damage the public interest." But the department also asked Judge Jackson to delay ruling on Microsoft's request for a stay until the company formally told the court that it would file an appeal in the antitrust case. The government did so because it couldn't ask for an expedited review of the case by the Supreme Court until Microsoft filed its notice of appeal, which the company had 60 days to do. The government wanted Judge Jackson to rule simultaneously on Microsoft's request for a stay on the restrictions and the notice of appeal. Microsoft objected to that in a filing of its own Tuesday, charging that "there is no justification for plaintiffs' extraordinary request that the court force Microsoft to file its notices of appeal on any particular schedule" and asking Judge Jackson to immediately rule on its motion for a stay pending appeal. Judge Jackson, however, refused to consider that request in a curt one-sentence order Tuesday afternoon, writing that "consideration of a stay pending appeal is premature in that no notice of appeal has yet been filed." Microsoft -- having apparently lost its struggle -- then filed its notice of appeal after the close of U.S. financial markets Tuesday. But that filing was then followed later in the afternoon by the appeals court's order. Assistant Attorney General Joel Klein, Justice's chief antitrust enforcer, said last week that he had secured approval from the U.S. Solicitor General to have the case sent directly to the Supreme Court. Judge Jackson had indicated his support for such a move. Such a move is allowed by the Expediting Act, a once-obscure part of antitrust law that allows antitrust cases of great national importance to qualify for immediate review on appeal by the Supreme Court. The high court, however, is under no obligation to accept such a review -- and the appeals court's action Tuesday makes it far less likely that the high court would do so. By taking such an extraordinary action, the appeals court was signaling its strong desire to hear the case -- a desire that likely would carry considerable weight with the Supreme Court in deciding whether or not to take the case. --Jerry Guidera of Dow Jones Newswires contributed to this article.