I sure hope they do appeal. You may not agree but imo, the Appeals Court judges were not much better than Jackson. I gave them more credit than they deserve and badly overestimated them. The two biggest reasons (and tons of smaller reasons) why I think they aren't much better is their failure to hold evidentiary hearings to settle disputed issues about Judge Jackson’s judicial misconduct, after they decided to address this new issue during the Appeal. The other reason is shown by one comment in particular during the Oral Argument, which revealed a surprising admission of their lack of understanding of what the Internet means for businesses especially as far as distribution. I don't know how you can think the decision was good. The Appeals Court judges were as bamboozled as Jackson by the ridiculous arguments of the government. They contradicted themselves constantly.
THE COURT: "I mean I have to say that I have only done downloading of these things with the help of much more skilled people. So I took seriously the proposition that that was a big barrier. But 60 million people just downloaded it?"
Was it Judge Williams who said that, the antitrust expert, or was that Judge Ginsburg?
They accept Microsoft's complaint of judicial misconduct..."for these reasons we have decided to adjucate Microsoft's disqualification request notwithstanding the state of the record" saying they have the discretion to accept new issues on appeal.
”We will assume the truth of the press accounts and NOT SEND THE CASE BACK FOR AN EVIDENTIARY HEARING.”
“We reach no judgement on whether the details of the interview were accurately recounted.”
HUH??? Do they accept hearsay evidence but not admit it?
I’m not a lawyer, but that statement appears to contradict itself, and much of their opinion contradicts itself within the decision, and contradicts what they said in Oral arguments, and what they said when they reversed the injunction in 1998.
Once the Appeals Court decided to accept the Microsoft’s complaint and request to disqualify Jackson, they are required to investigate thoroughly;
”We will assume the truth of the press accounts and NOT SEND THE CASE BACK FOR AN EVIDENTIARY HEARING.” that statements implies they have the power to order an evidentiary hearing. I may have misread the rules they changed regarding judicial misconduct. That may have been what they were referring to when they changed something to say that "in some case it is possible to tie up lose ends without a remand."
Why not hold evidentiary hearings on Jackson's misconduct? Afraid of the truth? Protecting your own?
They actually comment that the Plaintiff's did not ask for an evidentiary hearing? Why would they? They got what they wanted. Why do think the sobs from Procomp are going around high 5'ing each other, as one said on TV.
This court made an arbitrary cut off date; deciding Jackson's misconduct occurred at such and such a time that it required them to throw out only the remedy but uphold the Findings of Fact and the Conclusions of Law. What a weak case...all based on hearsay?
They can’t have it both ways either. They should have held an evidentiary hearing to resolve facts about what Jackson said, when he said it, and what he said. There is no way they should be allowed to decide to draw the line at the remedy stage; saying they throw out his remedy because violations occurred 'around then' but they uphold the Findings of Fact and Conclusions of Law.
They themselves acknowledge that Jackson's misconduct occurred before the Findings of Fact. (The NYTimes Interview-I'm not a fan of integration- september 1999.
They themselves said if it was know during the trial he would have been recused in two minutes.
They should have thrown the case out either for good, or remanded the case.
Don't forget it was Supreme Court Justice Scalia who presided over the Liteky case, where a judge was recused, just for a question of bias. I wonder if just the issue of Jackson's misconduct and the actions they took, rather the lack of action, could be appealed to the Judicial Conference of the United States, presided over by the Chief supreme Court Justice.
Isn't it ironic too that in their discussion of why Jackson violated basic procedural rule in not allowing an evidentiary hearing on the remedy they say: “It is a cardinal principle of our system of justice that factual disputes must be heard in open court and resolved through trial-like evidentiary proceedings. Any other course would be contrary ‘‘to the spirit which imbues our judicial tribunals prohibiting decision without hearing.’’
Only when the facts are not in dispute, or when the adverse party has waived its right to a hearing, can that significant procedural step be eliminated…. A hearing on the merits—i.e., a trial on liability—does not substitute for a relief-specific evidentiary hearing unless the matter of relief was part of the trial on liability, or unless there are no disputed factual issues. This rule is no less applicable in antitrust cases.
The Chief Judge of the Appeals Court has the power to appoint a committee, and a judiical council has subpoena power to gather evidence. It should have been done, imo.
Judge Jackson assumed no one knew which remedies were best and so he decided not to have an evidentiary hearing.
These judges use hearsay evidence to set a line after which they say Jackson was a bad boy, but ok before that line.
"All indications are that the District Judge violated each of these ethical precepts. The violations were deliberate, repeated, egregious, and flagrant." Section 455(a) of the Judicial Code requires judges to recuse them-selves when their "impartiality might reasonably be questioned." 28 U.S.C. s 455(a) "Disqualification is mandatory for conduct that calls a judge's impartiality into question."
Yet they basically did nothing but give Jackson a verbal tongue lashing. They said they had other reasons why they threw out the reemdy, but it makes it look like they took some action.
How can they say there is no remedy. The remedy is recusal and vacature, when indicated. It was indicated, imo.
Don't you wonder how much expertise the court has, just by the astonishment they showed at how easy it must be to download; upon hearing that 60 million copies of netscape were downloaded.
THE COURT: I'm guessing this won't reveal my ignorance, but I am focused on the breakdown of the 160 million. Are you saying, in answer to Judge Randolph's questions, that sixty million were actually downloaded from Netscape's website?
MR. UROWSKY: From Netscape's website and the mirror sites, that's correct, Your Honor. 60 million.
THE COURT: I mean I have to say that I have only done downloading of these things with the help of much more skilled people. So I took seriously the proposition that that was a big barrier. But 60 million people just downloaded it?
and he goes on and on, astonished that so many could do download, saying he can't do it himself, he needs help. This is a big problem. If these don't understand that distribution through the internet is fast easy and cheap, as Barksdale himself testified. If they understood that, they would not have found Micorosft guilty of all those sherman act violations of maintaining their monopoly by excluding OEM's from distributing Netscape. 60 million downloads and a total of 160 million browsers distributed plus 45% market share and a doubling of Netscapes's user base does not indicate a substantial foreclosure and is not exclusionary. . shows that MSFT did not exclude anyone. , which is not true either.
Many of the sherman act violations they affirmed are based on Microsoft's conduct that they claimed was exclusionary for this reason; they thought it prevented netscape from achieving a critical level of distribution which would interfere with MSFT monopoly. what a crock. That bs logic came from a so called Expert, part of the original sherman Project. Dennis Carlton was part of the original secret project. These judges actually quote Carlton on exlcusionary conduct. Carlton was one of the so called experts with impeccable crededntials paid by sun 600/hour to convince the DOJ to file antitrust charges. according to wired Magazine.
In the Oral Arguments, they said Why can't MSFT compete? Who decides what is permissible?
No one knnew then; no one knows any more now
So I took seriously the proposition that that was a big barrier
I'm afraid they took seriously too many arguments like that.
the crux of their findings and evidence that they don't appear as technically sophisticated I once thought. Microsoft should have let a computer expert explain the issues. They needed some educating, but it looks like they got it from ProComp or AOL....
Was it Judge Williams, who was supposed to be the antitrust expert saying all this? or was that Ginsburg?
THE COURT: Sixty million were downloaded, not necessarily 60 million individuals. !!!!!
THE COURT: Why was this not clarified in the record? Why are we guessing as to what that reference means?
THE COURT: I understand, but we are guessing here. You say one person didn't download it 60 million times. But large corporations, et cetera, who knows? And I'm just not clear why this wasn't all clarified.
THE COURT: Well, we are trying to find out. Judge Williams has suggested the difficulty he has. Maybe your assistant has the answer.
MR. UROWSKY: I'm reminded that because the case was handled on a pretrial basis, we didn't receive this document until after the case in chief had been completed and there was no witness ..
THE COURT: The District Court would not allow you an opportunity to clarify this? It seems to have grown in significance.
MR. UROWSKY: There wasn't a witness called.
THE COURT: An additional deposition? An evidentiary witness?
THE COURT: The question is how many users does 60 million downloads represent?
THE COURT: That's the bottom line. And the answer is we don't know from this record; is that correct?
I don't know what he was having such a hard time understanding that nownloading is no big dea. The government submitted this evidence late, but they had no desire to educate him either.
Just like the government had no interest or right even to request an evidentiary hearing to settle disputed issues about Jackson's misconduct that might result in having the entire case thrown out and remanded. They got what they wanted.
I also think somone, maybe in the guise of an expert, like an expert from the Sherman Project, financed by Sun, got to them, from the time of the Oral Arguments, to the time they wrote the decision.
They were very clear in the Oral arguments that the government had no case for tying. They say so over and over.
But in the decision, can't find the sentence now, they say they were told (more or less) they were too narrow or wrong or something.
So they remanded the tying issue, instead of reversing Jackson on that issue.
If I am not mistaken, they used three different standards to judge 'tying' a great example of what a crock of shxx antitrust doctrine is. Judges decide what it is, they contradict themselves and each other, there are no standards, and company's have no set of rules to tell them what is permissible and what is not.
In the Consent decree case, I think they used a standard that said "integration had to be beneficial"
In the Oral Arguments, tying was allowed if it 'standard market practise."
I don't understand what new standard they have set now. Rule of reason.??? |
