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

To: G_Barr who wrote (46655)	6/14/2000 2:39:00 PM
From: Daniel G. DeBusschere	Read Replies (1) \| Respond to of 74651

Anything can happen but MSFT has the facts on their side- After reading the appeals brief and learning of the Portland case, I think that both Appeals and Supreme Court (if it ever gets there) will take a very dim view of the District Court Judge's actions and orders. The fact that MSFT was able to engineer a quick acceptance of the appeal and thereby effectively shut down the DOJ freight train to the Supreme Court (or should I say railroad) bears great evidence that they are as pissed off at the District Judge as the District Judge is pissed off at MSFT. So we have a bunch of pissed off judges and I think the ones that have offices four floors above the District Court will have the final say. As I have said previously, "this dog will not hunt".

To: G_Barr who wrote (46655)	6/14/2000 5:02:00 PM
From: Zoltan!	Respond to of 74651

....The en banc order alone was an "unprecedented action," said George Washington University School of Law professor Bill Kovacic. "The appeals court almost never hears a case before the full panel." Most appeals go before a panel of three judges. Apparently, that order had been drafted ahead of time and was ready for Microsoft when it filed a stay motion with the appeals court yesterday, said sources familiar with the matter. "That is amazing and unprecedented," said Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley in Menlo Park, Calif. The appeals court's actions underscore its serious intention to hear the case, rather than the appeal being bumped directly to the Supreme Court, said University of Baltimore Law School professor Bob Lande. "They've sent a message to the Supreme Court: 'We're ready to jump on this thing,'" he said. Should Jackson certify the case for direct review and the Supreme Court decide not to take it, the tactical error could cause trouble for the government later on, Kovacic added. Already the appellate court had been expected to favor Microsoft in the appeal process. In 1998, the appellate court overturned Jackson's ruling forcing Microsoft to separate Internet Explorer from Windows 95. That "tying" issue returned in the current case, where Jackson again ruled Microsoft's bundling the two products together is an illegal act. But antitrust experts handicapping the trial expect the tying claim to be thrown out on appeal, weakening the government's case and grounds for breaking up Microsoft. "I expect the appeals court will likely reject the tying claim," said Glenn Manishin, an antitrust attorney with Patton Boggs in McLean, Va. The makeup of the appeals court panel of seven judges--Douglas Ginsburg, Stephen Williams, David Sentelle, Raymond Randolph, Harry Edwards, David Tatel and Judith Rogers--is "extremely good for Microsoft," Kovacic said. Legal experts still generally expect Jackson to certify the appeal for direct petition to the Supreme Court, but they say he has serious reason to rethink such an action. With the appellate court willing to expedite the appeal and hear it before a full panel, the Supreme Court is less likely to take the case directly. "I think odds are pretty good the Supreme Court will, at this time anyway, refuse the case," Lande said. The other matter before Jackson today is Microsoft's motion to stay conduct restrictions. The judge had been expected to reject the motion--and most likely still will, say legal experts. But Microsoft's filing of a stay with the appeals court reflects poorly on the judge. Yesterday morning, Jackson issued an order withholding his ruling on a stay motion Microsoft filed last week until he received the larger appeal. On Monday, the government in a legal brief had argued Microsoft should be forced to file its larger appeal before getting Jackson's ruling on the lesser matter. Such action would facilitate the government's petition the Supreme Court take the case directly. Jackson's options are limited as he addresses the stay motion. One option is to deny it and let the appeals court handle the matter. But this is something the government does not want. In its request for an expedited appeal to the Supreme Court, the government made it clear it would like the Supreme Court to handle the stay request. Jackson could try to move the entire appeal to the Supreme Court, but it is uncertain whether he has such authority, Kovacic said. Such an action would unfairly penalize Microsoft. "If they try to do that, there is no way the Supreme Court can decide the stay issue before the 90-day waiting period runs out," he said. "Any measure that would have the effect of denying Microsoft appellate review before they take effect would be deficient." But letting the appeals court decide on the stay motion could undermine the government's case, he added, particularly if the court decides to stay most or all of the conduct restrictions. Generally, the appeals court's reaction to the appeal is viewed as a litmus test of the eventual outcome. cnetinvestor.com

To: G_Barr who wrote (46655)	6/14/2000 5:50:00 PM
From: Jacob Snyder	Read Replies (1) \| Respond to of 74651

re: I'm not sure why MSFT is so intent on going to the D.C. circuit as it only delays ultimate resolution for 2 or possibly even 3 years. If they can get the conduct remedies (in addition to the breakup) postponed for a couple of years, that is worth a lot. In addition, it would give Microsoft an advantage in the Supreme Court, if the appeal court had a different opinion than Jackson.

To: G_Barr who wrote (46655)	6/14/2000 7:20:00 PM
From: Alan Buckley	Respond to of 74651

[They just review it under an extremely deferential standard such that they will not disturb such finding as long as any evidence was presented to support them.] Yes, and Jackson screwed himself out of this deference by not citing evidence in his "findings of fact". From Microsoft's appeal: "Although 412 paragraphs long, the courts findings do not contain a single citation to the record, making it impossible to ascertain the purported basis for many findings...". This is especially suspicious given the huge amount of hearsay evidence Jackson allowed to be presented. Microsoft is shrewd to point out in their appeal numerous instances where Jackson's "facts" are inconsistent within themselves. Not even the shameless DOJ can hold that contradictory rulings do not warrant review. Jackson is such a sorry little man. What an incredible waste of time and resources he's caused. It's going to be a pleasure watching a full panel of appellate judges dissect his nonsense. Can't wait until they get to the part where he says the appellate courts "undemanding test is inconsistent with pertinent Supreme Court precedents" even thought those precedents were considered in the appellate decision.