BUSINESSWEEK ONLINE : JUNE 26, 2000 ISSUE
NEWS: ANALYSIS & COMMENTARY Will the Appeal Hold Water? To hear Microsoft Corp. (MSFT) tell it, Judge Thomas Penfield Jackson's ruling against the company was one of the low points in American legal history. In a withering appellate brief filed on June 13, the company argued that Jackson was guilty of ''an astounding abdication'' of his responsibilities and that ''serious substantive and procedural errors...infected virtually every aspect'' of the case. All the invective made for good reading, but are the higher courts likely to buy it? Depends on whom you ask. A random poll of nearly a dozen experts, asked about whether Microsoft could overturn Jackson's decision on appeal, produced almost as many answers, with the odds of a company victory ranging from an optimistic 75% to a cynical low of 10%. Why the uncertainty? Because the case is so unprecedented that predictions about the outcome ''really don't rise beyond the level of tea-leaf reading,'' says Howard University Law School antitrust professor Andrew Gavil. POINTS OF ATTACK. Nonetheless, there is a rough agreement about which parts of the ruling are most likely to be attacked by the District of Columbia Circuit Court of Appeals and the U.S. Supreme Court (if, as most people suspect, it ultimately chooses to hear the high-profile case). At the top of the list is Jackson's finding that it was illegal for Microsoft to bundle its Internet Explorer into the Windows operating system. This is a theory that the D.C. Circuit has viewed skeptically in the past, and many experts don't reckon the judge's opinion was strong enough to overcome the higher court's earlier objections. The second most vulnerable part of the opinion is Jackson's ''monopoly maintenance'' ruling: To defend its Windows monopoly, Microsoft committed a series of predatory acts, such as withholding data about its computer code and forcing business partners to sign exclusionary contracts. HIM AGAIN? Many of these practices may have been legal if considered independently, but Jackson wrapped them up into one giant Sherman Act violation and ruled them illegal. Some question whether that will stand. Others disagree: The judge's factual conclusions on the monopoly maintenance issue are based almost entirely on the credibility of witnesses, and therefore it's ''where, as a legal matter, his findings are most insulated from attack,'' says Washington (D.C.) appellate specialist Thomas F. Goldstein. The parts of Microsoft's appeal that impress experts the least are the procedural claims that accuse the judge of denying the company a fair trial by ignoring its request for a prolonged remedy hearing, talking to the media, and taking some shortcuts during the trial. Even if the higher courts agree, they probably won't toss out the case. Instead, they are more likely to ship the case back to Jackson's courtroom for further consideration. That's probably the last place Microsoft wants to find itself again. By Mike France in New York _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BACK TO TOP					RELATED ITEMS The Great Antitrust Debate TABLE: Hurdles for the New Antitrust Will the Appeal Hold Water? Commentary: Lessons from the Web--A World without Monopolies Microsoft's Killer Apps TABLE: Microsoft Unchained INTERACT E-Mail to Business Week Online

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