MS to ask Supremes to stay off its case

MS on Trial Microsoft is about to file its first missive to the Supreme Court, in what is widely expected to be an attempt to persuade the Supremes not to hear the case, and send it to the more sympathetic Court of Appeals.

Antitrust lawyer opinion is divided as to whether it is more likely that the Court of Appeals will be asked by the Supremes to review it first. However, if the they do refuse to hear the case, they would effectively be nullifying the antitrust expediting Act, since there could hardly be a more compelling case that met the "general public importance" criterion.

Historically the appellate courts have not usually involved themselves in re-examining the facts, and Microsoft is likely to be disappointed that it cannot reargue its case. What is less clear is the state of the judicial politics between the DC Circuit and the Supremes, which could be a deciding factor in the determination of venue.

The Court of Appeals has made its Microsoft-sympathetic views rather transparent by its eagerness to take the case, and saying that all available appellate judges would hear the appeal, rather than a panel of three, as is much more usual. If the case is sent to them by the Supremes, it is likely to return to the Supremes at the request of the loser. It is also probable that not all the Court of Appeal judges would agree an opinion, so there would be a minority opinion as well for the Supremes to consider.

Microsoft has taken on Carter Philips of Sidley & Austin, a lawyer with experience of presenting cases to the Supremes. Philips has an impressive record with such cases and will probably be less combative than Sullivan & Cromwell were before Judge Jackson. However, much of the leg work will be done by S&C, with Philips adding the gloss. If there's a problem, it is that he has three other Supreme Court cases on the go at the moment, as well as a number of cases in appellate courts around the country, so Microsoft may find he is short of time for its case.

The DoJ's reply is due by 15 August, and Microsoft will then have an opportunity to respond by 22 August.

There was support for Microsoft recently in the WSJ, where it was noted that: "There's one other place where business is still regarded as an enemy: the antitrust shop at Justice. Only the resilience of the stock market can explain why so little attention has been paid to the sheer breadth of Mr Klein's assault... Mr Klein wasn't elected by anybody and shows little evidence of being overseen by anybody who was..."

The view that Microsoft was victimised by the DoJ persists, with the theory being that a result was the late Spring stock market decline. Certainly many investors are associating the DoJ's action against Microsoft with the market decline, perhaps aided by Microsoft's propaganda, while in reality the main factor was probably an over-heated market that experienced a sharp market correction. ®