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Ruling would hurt MS, staff, millions of people – says MS

Colourful language backs request for stay

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MS on Trial Microsoft has asked Judge Jackson for a stay on the Final Judgement, couching its Motion in aggressive terms. Starting with a claim that the judge's ruling would inflict "grievous and irreparable harm on Microsoft, its 35,000 employees, its millions of shareholders, its thousands of business partners, and the tens of millions of consumers around the world", Microsoft goes on ask that none of the remedies be implemented before appellate review of "the Court's liability determination and the relief awarded".

In its Motion, Microsoft claims that it would be irreparably harmed if the judgement were to be enforced, although there is no sworn evidence on file that this would be the case. Despite the judge's adverse comments about Microsoft's Offers of Proof, Microsoft's lawyers cite them as though they had not been rejected as unreliable. Quoting DoJ declarant Paul Romer saying that the Final Judgement would "profoundly change the dynamics in the software industry" invites the simple response that this is most certainly the intention.

It's one thing for Microsoft's execs to be arrogant and claim innocence (so long as they do not do this on oath), but for the lawyers - who are supposed to be officers of the court - to file this stuff is unlikely to win any favours in the Court that will supervise many aspects of the case for a long time to come.

Microsoft is sensitive about Judge Jackson's remark that "Microsoft has proved untrustworthy in the past". Spokesman Mark Murray said "I don't think that the judge has made comments about the credibility of Microsoft" but Microsoft lawyer Bill Neukom contradicted him at a press conference: "In terms of the judge's statement in today's memorandum that this company is somehow untrustworthy, we are, of course, disappointed to read that in a judicial document." Neukom suggested that the judge "may have reached this conclusion... based on events in a separate case outside the record of this litigation" - apparently when Microsoft misled him about the separation of IE from Windows and produced a version of Windows 95 that did not work.

Neukom pronounced that Microsoft was opposed to the case going directly to the Supreme Court ("no more special exceptions are needed in this case"), and reiterated that he placed his faith in the DC circuit that "is accustomed to considering complex issues based on voluminous trial records". It was ominous that Neukom is prepared to reveal that in his view "two or three" of the eleven DC circuit judges "would recuse themselves from reviewing this matter", but whether they were Apple users, he did not say. Certainly one of them had to stand down previously because he owned Microsoft stock. Neukom said he did not expect to know which three judges would make up the panel for "several months".

Neukom made it clear that Microsoft would also seek to have the facts reviewed: "it is absolutely and constitutionally true that courts of appeals review Findings of Fact made by district courts when those findings are challenged by the appellant. We will challenge many, many of the Findings of Fact entered by the district court", which sounded as though Microsoft wants a retrial. Neukom said that Microsoft would be seeking am expedited review from the Court of Appeals, with a possible decision "by the winter or spring months". However, "the Supreme Court will probably take several months to decide whether to keep the appeal" and if the case bounces from the Supremes to the Court of Appeals and back, it would take as long as a year and a half or two years.

The present stay Motion in the District Court is really just a formality, and it's not separated into two parts, conduct and break-up. Judge Jackson will most likely dismiss it in the near future. This will give Microsoft the chance to take it to the Court of Appeals with a more substantive brief. There is no certainty that the appellate court would allow at least a partial stay pending a fuller appeal. Microsoft has three months before any of the remedies begin to bite, so the appellate court will most likely rule on this before 7 September. It this is not done very quickly, it would be most interesting to know if Microsoft is making any contingency plans in case it cannot get the whole judgement stayed. It's no fun being on death row. ®

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