February 9, 2001 10:05 AM PST

Microsoft cites precedent for removal of Jackson

WASHINGTON--Microsoft has received a second break this week in its antitrust appeal.

A decision in an unrelated case has given the Redmond, Wash.-based company new ammunition as it seeks to remove U.S. District Judge Thomas Penfield Jackson from the historic case. Jackson, who had been highly critical of Microsoft throughout the trial, determined last June that the company should be broken into two pieces.

Late Thursday, Microsoft filed a notice with the U.S. Court of Appeals for the District of Columbia Circuit referring to a decision handed down by another court on Monday that appears to significantly boost Microsoft's drive to remove Jackson.

In that case, U.S. District Judge Nancy Gertner made a fairly innocuous comment to the media regarding a case involving Boston public schools. Plaintiff attorneys had accused Gertner of inconsistency handling the case compared with an earlier proceeding.

Gertner simply explained that the case is more complicated than the earlier one.

But the U.S. Court of Appeals for the First Circuit removed Gertner from further handling of the case, even though the court saw no bias inferred by the statement.

"It was a very innocuous statement by the judge in an ongoing case, and the Court of Appeals said, 'It's the appearance of impropriety and you're bounced,' " said Bob Lande, an antitrust professor with the University of Baltimore School of Law. "It was a really mild statement, nothing like what Jackson has done. The Jackson stuff is 10 times stronger."

Strong precedent?
Microsoft has repeatedly attacked Jackson for comments he made to the press following the trial's close. In legal briefs, the company argued Jackson's comments infer bias and cast doubt on his handling of the entire case.

Hillard Sterling, an antitrust attorney with Chicago-based Gordon & Glickson, sees strong precedent for Jackson stepping down.

"This (Boston) case provides Microsoft more ammunition that Judge Jackson should have recused (i.e., disqualified) himself," he said. "Recusal is necessary with just the appearance of bias. It's not necessary to prove bias."

Microsoft declined to comment on the Thursday filing.

Jackson aimed some of his statements at Microsoft and others at chairman Bill Gates. But he also accused the appeals court of making up "about 90 percent of the facts" in an earlier Microsoft case. His out-of-court comments have weakened the government's chances of walking away with a clear victory on appeal, Sterling said.

Jackson's role in Special coverage: Breakup the case has ended for now. In June 2000, he ordered Microsoft be broken into separate companies--one for operating systems, one for software applications--after he had earlier ruled that the company violated U.S. antitrust law. But the Court of Appeals is expected to send back, or remand, the remedy portion of the case to the District Court and thus potentially back to Jackson.

Lande said the timing of the Boston decision couldn't be better for Microsoft.

"It's a very strong precedent that Jackson should not hear the case on remand," he said.

Bill Kovacic, an antitrust professor at George Washington University, doubts the Court of Appeals would throw out the case based on Jackson's posttrial comments.

"I can't see the court vacating the verdict for Jackson's statements, but I don't see the appellate judges letting him touch this case again, either," Kovacic said. "You can safely assume he will be removed."

Do Jackson's comments undermine his ruling?
Lande also noted that while the Boston case ruling is good for removing Jackson, "it doesn't mean his opinion should be reversed."

But the larger impact of Jackson's extrajudicial statements is a more strict review of his ruling and remedy, Sterling said.

"Jackson's comments will not be cause for reversal, but they will color the appellate judges' views on the merits of the case," he said. "The judge's comments paint a picture that his disfavor of Microsoft motivated the decision, not the evidence in the record."

Microsoft could not normally draw the court's attention to another case, but under the Rules for Appellate Procedure, new decisions can be presented to the Court of Appeals. Microsoft's lead attorney in the trial, John Warden from New York-based Sullivan Cromwell, wrote the letter to the court.

On Tuesday, the Court of Appeals handed Microsoft an unexpected gift when setting a schedule for oral arguments. The court allotted 30 minutes each to Microsoft and the government--the Justice Department and 19 states--to discuss Jackson's "conduct of the trial and extrajudicial statements." Neither side had requested time to discuss Jackson.

"It would have been very easy for the appellate judges to acquiesce to the parties suggestion not to discuss this in the open courtroom," Kovacic said. "The court's willingness to discuss such an awkward topic in the open courtroom reflects their sense that it is a very serious issue."

Oral arguments in the case are scheduled for Feb. 26 and Feb. 27, with an appeals court decision expected as early as April or May.

 

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