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MS tries to cut States out of Supreme Court appeal

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MS on Trial We can now reveal why Microsoft decided to split its appeal into separate actions against the DoJ and the Plaintiff States. In Microsoft's response filed yesterday with the Court of Appeals against the States' request that Microsoft's stay motion be dismissed or deferred, there is a note of triumph: "In their zeal to secure direct review in the Supreme Court, the States misstate the Expediting Act... [which] applies only to an action in which the United States is the complainant'". Microsoft is therefore claiming that the States' case may not be taken to the Supreme Court, but there are two possible problems with this view.

Whether Microsoft will succeed in cutting out the States will depend on a legal interpretation of whether the complainant can consist of more than one party in a consolidated case, but Microsoft has not exactly helped itself in this matter. The States point out in their brief that: "At the request of Microsoft, which called consolidation unquestionably appropriate' because of the same factual allegations and legal theories' that go to the very heart' of the United States' and States' complaints... the district court on May 22, 1998 ordered the federal and State actions consolidated for all purposes'.

"That court conducted a single lengthy trial of this consolidated case, entered a single set of findings of fact, a single set of conclusions of law, and a single Final Judgment in the case. It is from that single Final Judgment that Microsoft now appeals. Accordingly, this proceeding involves appeal from one judgment in an action in which the United States is a complainant, as set forth in the language of the Expediting Act. The United States and the States jointly have filed a motion for certification under the Expediting Act..."

The second problem is that the Expediting Act is not very carefully worded, and although Microsoft is correct that Section 29(a) has the provision that the US needs to be the complainant, it is arguable whether the wording applies to Section 29(b), which deals with direct appeals to Supreme Court, because of a provision "Except as otherwise expressly provided by this section..." and which creates doubt as to the intention. This means that Microsoft may be able to spend even more time arguing over trivia. The importance of the States' role has diminished since the final judgement, but to Microsoft it would be a propaganda victory if it could exclude the States. Commonsense would say that there should be one action, and that the States should be part of the DoJ action all the way, but whether the law of equity will prevail remains to be seen.

In another filing, Microsoft complained to the Court of Appeals that Judge Jackson's "no appeal, no stay" rule flew in the face of "hornbook law" that "an appellant may seek a stay even before filing a notice of appeal". Well, if so, Judge Jackson made some new law. In perhaps its most arrogant claim so far in the case, Microsoft said it "gave the district court a more than ample opportunity to decide the stay motion, and the district court failed to afford the relief requested". It is unusual for a defendant to act as judge. It appears that Microsoft is jockeying for a further intervention by the Court of Appeals today or on Monday, before it files its response to the plaintiffs' motion to move the case to the Supremes. Microsoft also says that it "should not be faulted" for its faulty two-paragraph motion for a stay, because it thought it would lose anyway.

Microsoft introduced further argument that the DoJ's and States' actions should be treated separately, and pointed to the fact that the Court of Appeals had issued two orders on 13 June, which Microsoft would like to be seen as agreement by the court that there are two separate actions. There can be no certainty as to whether this is the view of the appellate court, but Microsoft triumphantly claims that even if the DoJ action is taken by the Supremes, "Microsoft's appeal of the States' case will remain [in the Court of Appeals] and the stay motion must be ruled on in that case. This is wishful thinking, because it is very unlikely that the Court of Appeals would do anything if the Supremes accepted a consolidated appeal - at least until they were sent the case by the Supremes.

At least three of the justices seem likely to support Microsoft, with one likely to be opposed, but the views of the others are less certain. Handicappers are already noting that seven of the nine justices were nominated by Republican presidents, which on a simplistic interpretation would suggest Microsoft might well receive favourable treatment. The odds must be that the Supremes would send the case to the Court of Appeals to sort out some legal issues and that these would then be sent back to the Supremes for decision.

The critical near-term decision will be over the conduct remedies stay: if Microsoft gets this, it would be a major triumph. If Microsoft wins the skirmish about the States' case being separated and kept in the Court of Appeals, this would also amount to a win for Microsoft in that it would be able to bring up all manner of trivial issues to spin out the case. The legal freneticism is of course also a win for Microsoft's external lawyers, who are paid by the minute. ®

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