Legal Update

The U.S. Department of Justice (DoJ) and 19 states have filed a brief maintaining the DoJ’s stand on Microsoft’s antitrust guilt and defending Judge Thomas Penfield Jackson’s comments outside the courtroom. In addition, several Microsoft competitors have hired former Whitewater prosecutor Kenneth Starr to represent their interests in the case.

Filing Defends Jackson’s Comments

For the most part, the brief to the U.S. Court of Appeals reiterates the arguments that the DoJ made before Judge Jackson in the U.S. District Court, claiming that Microsoft violated the Sherman Act by engaging in anticompetitive conduct to maintain its operating system monopoly; by attempting to monopolize the browser market; and by “tying” its browser, Internet Explorer, to its operating system, Windows.

One new wrinkle was the brief’s defense of Judge Jackson’s procedure during the trial and conduct after it. Microsoft claimed, in a Dec. 2000 filing before the Appeals Court, that Jackson erred by handing down an extreme remedy—the breakup of the company—before hearing additional evidence; by admitting hearsay evidence in the form of news articles; and by making comments to media organizations immediately following the trial, among other things. The DoJ’s filing refutes these claims, and includes a five-page defense of Judge Jackson’s comments outside the courtroom, in which each of his remarks to the media is analyzed from a legal perspective. The DoJ claims that Jackson’s comments “demonstrate neither bias nor the appearance of bias” (Jackson even noted his admiration for Microsoft in one of the interviews cited), and therefore should not result in a reversal of Jackson’s order or in his recusal from the case.