U.S. Blasts Microsoft Appeal Tactics

Ratcheting up the tension in what had already become an all-out brawl, the U.S. Department of Justice (DOJ) accused Microsoft Corp. (Nasdaq: MSFT) on Tuesday of purposely delaying the company’s pending antitrust appeal.

To emphasize the need for a speedy resolution, the government lawyers filed their proposed appellate schedule two days before the deadline.

On Monday, Microsoft filed its proposed schedule with the appellate court, suggesting a timetable that would extend the period for filing briefs until next spring. Under Microsoft’s schedule, the court would not begin deliberations for at least six months. The software giant also asked if it could file briefs four times longer than the usual maximum length.

“There is no justification for this extraordinary request,” the DOJ said in its filing. “This is an appeal, not a retrial.”

Stalling for President Bush?

Government officials and others have speculated that Microsoft is trying to stall because Texas Governor George W. Bush, who is supportive of Microsoft, could change the course of the case if elected to the presidency in November.

For its part, Microsoft has said the government is trying to rush the appeal in order to gloss over review of what the company’s lawyers consider crucial errors by U.S. District Judge Thomas Penfield Jackson.

Should Microsoft ultimately lose on appeal, it will face a company breakup. In April, the trial judge ruled that Microsoft had violated federal antitrust laws, and in June ordered the software titan to split into two separate companies, one selling operating systems, and the other selling software.

The breakup was been delayed pending completion of all appeals.

“We have suggested a schedule and briefing length that will allow for a prompt and efficient process to consider the appeal,” said Microsoft spokesperson Vivek Varma.

Government lawyers also criticized Microsoft’s assertion that the complex nature of the appeal warrants lengthy schedules and briefs. “The legal issues do not differ significantly in complexity or scope from those presented in any civil antitrust case,” DOJ attorneys said in papers filed with the court.

Need for Speed

The DOJ reiterated the importance of a timely resolution, particularly since the trial court granted a stay of the breakup order and related restrictions on Microsoft’s practices until the appeal is decided.

“It is essential for effective antitrust law enforcement in a critical sector of the nation’s economy that the appeal be concluded expeditiously,” DOJ lawyers wrote.

The government’s plan called for all briefs to be filed by December 22nd, followed by oral arguments to be set for January. The government’s proposed schedule also called for Microsoft’s opening brief to be filed no later than November 1st and be limited to 24,000 words, which is 10,000 words over the normal limit.

Microsoft is asking for 56,000 words and 60 days from when the court sets a schedule.

State Attorneys Committed

Two attorney generals of the states that have joined the case against Microsoft, Richard Blumenthal of Connecticut and Thomas J. Miller of Iowa, said they will push for the breakup, even if Bush wins election and lobbies for a milder form of remedy.

“The states are committed to litigate this to conclusion,” Blumenthal told reporters. “We’re in for the long haul.”

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