- The federal judge who ordered that Microsoft be broken up yesterday sent the company's appeal directly to the US Supreme Court, bypassing the usual process, in which the antitrust case would next go to the US Court of Appeals.
And in a surprise move, US District Court Judge Thomas Penfield Jackson postponed all the remedies — the implementation of the breakup plan and a set of restrictions on Microsoft's business conduct — that he had ordered on June 7. Jackson said this stay of the entire final judgment will last until the appeal is decided.
That's a big relief to Microsoft, which has been concerned that the conduct restrictions imposed by Jackson would disrupt business if they took effect Sept. 5 as scheduled. A Microsoft spokesman said the software vendor is pleased that the remedies were postponed, but he reiterated the company's contention that Jackson's breakup ruling contains a multitude of errors and should first be reviewed by the appeals court.
The US Department of Justice (DOJ), which last week asked Jackson to certify the case for immediate review by the Supreme Court, said in a statement that it was "very pleased" he had done just that in his ruling today. Jackson's brief order invokes the little-used Expediting Act, which provides for direct Supreme Court review of antitrust cases "of general public importance in the administration of justice."
Microsoft and the government have been waging a furious battle over the potentially critical issue of which court will hear the company's appeal of the breakup order. The DOJ and the 19 states involved in the case said going directly to the high court would speed up resolution of the case since "an appeal to the Supreme Court is . . . inevitable" anyway.
But Microsoft wanted the appeal heard by the Court of Appeals here, which has ruled in its favor on previous antitrust issues. The appeals court had expressed an eagerness to tackle the case, saying it would assign seven judges to hear the appeal instead of the usual three.
Despite Jackson's latest order, though, Microsoft may still have its way. The Supreme Court can either accept the case or turn it back to the appellate court for review. Some legal analysts have predicted the high court will take the latter option so the appeals court can sift through the complex issues and testimony first.
The willingness of the appeals court to get involved "diminishes the likelihood the Supreme Court will take the case on direct review," because more judges will have considered the issues and the ruling would have more credibility, said Robert M. Heller, an antitrust attorney at Kramer Levin Naftalis & Frankel in New York.