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DoJ argues against splitting MS appeal

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MS on Trial The DoJ has suggested to the Court of Appeals (the posted document mistakenly says "District Court") that it should not go along with Microsoft's attempt to split the DoJ's and States' cases. Even if the Court of Appeals reads the terms of the Expediting Act to agree with Microsoft's contention that the States' case could not be certified to the Supreme Court, the DoJ says that there are reasons to act otherwise.

First, the action is inseparable. At Microsoft's previous request, the cases had been combined "for all purposes" and the legal and fundamental issues were the same. Microsoft had also mischaracterised an instance where the DoJ and States had sought to cross-examine witnesses separately, in that it doesn't mention that this had not been allowed by Judge Jackson.

Furthermore, the relevant Supreme Court rule said that: "all parties to the proceeding in the district court are deemed parties entitled to file documents in [the Supreme] Court", and because the word "proceeding" is used rather than "case" or "action", it was clear that the Supremes intended that consolidated actions were to be kept consolidated. Anyway, the DoJ said, it would be against "judicial economy" and "one judgment cannot simultaneously be appealed to two different courts".

"With an abundance of caution" as the States put it, the States would anyway ask the Supremes to take the case ("to grant certiorari") which they were entitled to do as it was of "imperative public importance", and there was precedent for it to do so.

Microsoft has said it would be filing an answer today to the DoJ motion to Judge Jackson to certify the case to the Supreme Court. It may well be that it files late in the day and that its filing is too long for Judge Jackson to sensibly be able to make his order today without reading it in full, but is very unlikely that he will delay his decision very long, and his agreement seems to be certain. The interesting thing will be to see how the Court of Appeals reacts: its earlier action was interpreted as a semaphore to the Supremes that it was very keen to get its hands on the case, and indeed this could well happen - but not until the Supreme Court has considered it. ®

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