In the second day of an appeals court hearing on the proposed breakup of
Microsoft Corp., seven federal appellate judges expressed anger over media interviews in which the trial judge who ordered Microsoft’s breakup sharply criticized the company, and might have put in jeopardy his final ruling.
U.S. Court of Appeals panel for the District of Columbia
heard Microsoft lawyer Richard Urowsky on Tuesday accuse U.S. District Judge Thomas Penfield Jackson of showing prejudice when he ordered the company to be divided into two parts, based on comments he made to journalists even before his ruling was released.
“It appears that the comments were certainly made long before we reached the true remedy stage, which was in the spring of 2000,” Urowsky said. “I believe they precede the conclusions of law.”
Urowsky told the court that in his opinion the remarks should lead the appeals court to nullify the verdict breaking up Microsoft. “Are you also asking we vacate the conclusions of law, the findings of fact?” Judge David Tatel asked Urowsky. “That’s correct,” he responded, saying Jackson’s interviews were a reason the Court of Appeals should overturn the lower court’s ruling.
But a government lawyer argued the comments of U.S. District Judge Thomas Penfield Jackson were not enough to overturn the decision. John Roberts, representing the District of Columbia and 18 states, said, “We are not defending the judge’s decision (to give interviews). But the question before the court is whether or not that shows bias or a lack of impartiality.” Roberts said the comments were “not a basis” to rule the judge was biased.
Judge David Sentelle appeared to agree with the government’s contention, asking Urowsky if the statements happened after Jackson made his decision, would there still be cause to overturn the breakup decision. Urowsky said there would because there is no evidence the appearance of bias started only with the quoted statements.
Tatel told Urowsky there was no evidence “other than your own speculation that he had these views before the trial started.”
But when the government made its defense of Jackson’s conduct, the Appeals court made it clear that Jackson made comments he shouldn’t have.
Judges have no right to “go run off our mouths” to reporters about cases they’re hearing, said Chief Judge Harry Edwards. “The system would be a sham if all judges went around doing this.”
Jackson, in the January 8 issue of The New Yorker, said Microsoft founder Bill Gates “has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses.” In a book by Ken Auletta, “World War 3.0: Microsoft and Its Enemies,” Jackson also criticized the appeals court, saying it “made up about 90 percent of the facts on their own,” in an earlier case.
Legal experts have warned that Jackson’s ongoing comments about the case have undermined the government’s case. They also warned that whatever the outcome of the appeal, Jackson would likely be removed from the case should any portion be sent back to the District Court.
Confusion over ‘browser market’ definition
The early part of the morning session concentrated on the lack of definition by Jackson as to what is the browser market, with the Williams and Edwards believing Jackson failed to set his own definition when the government proposed one. At one point, Edwards got government attorney David Frederick to admit the ambiguity in its findings. “The District Court made no appropriate finding of the relevant market?” Edwards asked. “I would concede that, your honor,” Frederick answered, but explained that the appeals court could define its own definition if it wanted to.
Williams responded that with no set definition by Jackson, the appeals court would have to send the case back to the District Court, effectively removing Jackson from the case. Frederick disagreed with Williams’ assumptions.
The panel then addressed confusion over what exactly was Netscape’s business plan for its Web browser, with Edwards saying the government was running away from the real issue which was the distinction between a browser and an platform markets.
“You are going back and forth between the platform and what the District court calls the comprehensive platform for the development of network centric applications and the browser market. They are distinct matters,” Edwards said. “You can’t have it both ways.”
Frederick responded Netscape’s business plan was to encapsulate both concepts. Edwards quickly cut Frederick off saying, “We went through that yesterday and it’s a hard hill you’ve got to climb when (Netscape’s Jim) Barksdale said that is not our interest and Netscape has done nothing to get there.”
In the second portion of the morning session, both sides fought their position on the handling the remedies portion of the District court case that lead to Jackson’s order that Microsoft be broken into three separate companies. Microsoft attorney Steve Holley contended Microsoft wasn’t given the opportunity and time to counter with its defense with regard to the penalty against Microsoft, at one point saying Microsoft wasn’t given the opportunity to cross examine six government experts who ultimately had a profound impact on the courts decision to break up the company.
“No account was taken of the grievous harm that this decree would enact on Microsoft and on a wide range of third parties,” Holley said. “Most fundamentally, the decree (the District court decision to break up Microsoft) cannot stand because the District court refused to hold an evidentiary hearing.”
Government attorney Frederick argued that Microsoft didn’t take the opportunity to properly respond. “Microsoft could easily have had sworn statements from the people in their offer of proof had it chosen to do so and it did not choose to do so,” Frederick responded.
An appeals court decision is not expected until summer.