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MS on Trial Microsoft's stay appeal is not at the moment in a form acceptable to the Court of Appeals because it is too long. Microsoft knows this, because it has submitted a separate "Motion for Leave to Submit an Overlength Motion for Stay Pending Appeal" to the court asking it to accept its longer motion for a stay.

The Federal Rules of Appellate Procedure require that a "A motion or a response to a motion must not exceed 20 pages... unless the court permits or directs otherwise" - and Microsoft's stay Motion runs to 39 pages. Microsoft asked both the DoJ and the Plaintiff States to agree to a longer brief, as required by the DC Circuit's rules on consultation, and to say whether it was intended that they would file an opposition or other response. The Plaintiff States refused to agree to the overlength stay motion, but evidently did not say whether an opposition would be filed. For its part, the DoJ appears not to have stated a view on either.

Now here's a very interesting little titbit: the overlength motion was first served on the DoJ on "13_8" June, according to Microsoft's Website, with an initial reference to a 39-page motion, and later in the same motion, a statement that an identical "36-page stay motion" was being filed in the States' case. Microsoft then goes on to ask the court to agree to accept a "396-page" stay motion. The text is also duplicated. However, the Plaintiff States were apparently served on 8 June (the day after the Final Judgement) with a request that the States agreed to Microsoft filing a 36-page motion (not 39 pages).

What we're probably seeing are some editorial botches and early drafts, but they show us that Microsoft had been considering filing its appeal last Thursday; for tactical reasons it did not do so. It's not surprising that Microsoft made the brief three pages longer, but the 396-page reference must be an another editing mistake. These errors may not be in the Court of Appeals version (and no doubt will very shortly disappear from Microsoft's Website, but not our cache).

There are other problems for Microsoft. The DC Circuit is not a bit keen on overlength briefs, and says in its own rule 27(h)(3): "Pleadings in Excess of Page Limits. The court disfavors motions to exceed page limits; such motions will be granted only for extraordinarily compelling reasons." DC Circuit Chief Judge Harry Edwards stressed this is in an interview last year: "Probably the worst problem that the court faces, from both good and not-so-good advocates, is overly long briefs! Almost every attorney writes to the page limits and most cases do not require briefs as long as the page limits allow. It is truly amazing that attorneys fail to understand that a tight argument is both easier to read and much more impressive than a verbose offering." Maybe Microsoft's thinking is that there's obfuscation in verbosity, and that a short brief might expose a barren argument.

There's also a potential problem about the consolidation of the cases - at least the DoJ sees it as a problem. Microsoft has been treating the case as two cases again, and it's unclear if it thinks this is the correct procedure, or if it hopes to play the DoJ' and States' cases differently. The Court of Appeals, if it does get the case, would almost certainly consolidate them, as it has done previously. The DoJ, in a footnote to its Motion for Certification of Direct Appeal to the Supreme Court, notes that it is that a rule of the Supreme Court requires that once a direct appeal has been certified under the Expediting Act (and this most likely will happen today), the consolidated case would be certified for direct appeal. So should the Supreme Court decide to send the case back to the Court of Appeals, it would arrive as a consolidated case.

With the media spotlight on every move by the Court of Appeals, it is unlikely that Microsoft will be allowed to get away with any procedural mistakes. There are certainly more than a few signs of panic in the legal department at Fort Redmond - starting with Bill Neukom's title: in his Verification "under penalty of perjury" to the Court of Appeals for the stay motion, he describes himself as "Senior Vice President, Law and Corporate Affairs". In a press release today, and since earlier in the year, he's been describing himself as "Executive Vice President". The problem seems to be that there has been no official press release announcing his promotion - and it's said when he was made Senior VP, he had to write his own press release. Presumably he's too busy to do this again. ®

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