- The Washington Times - Wednesday, February 28, 2001

Microsoft Corp. attorneys yesterday argued that comments a federal judge made after the software giant's antitrust trial last year showed his bias and should invalidate his decision to break up the company.

Appeals court judges argued that U.S. District Judge Thomas Penfield Jackson's remarks he compared Microsoft co-founder Bill Gates to Napoleon created an appearance that he was biased.

An attorney for the federal government, 18 states and the District of Columbia suing Microsoft countered that Judge Jackson's comments were not evidence that he had a bias at the time the court case began.

John Roberts, an attorney representing the states and the District, also said that even if the panel of seven judges on the U.S. Court of Appeals for the District of Columbia sends any part of the case back to the lower court, they should send it to Judge Jackson.

That didn't sit well with the appeals court.

"I'm not sure how you can ask us with a straight face" not to consider Judge Jackson's comments, Judge David Sentelle told Mr. Roberts.

Appeals Court Chief Judge Harry Edwards was more forceful.

"The system would be a sham if all judges went around doing this," he said.

Judges and attorneys yesterday held a spirited final day of arguments in Microsoft's appeal.

From the outset yesterday, Microsoft challenged Judge Jackson's breakup order and questioned his motive for the decision.

"The most draconian aspect of this decree, the breakup of Microsoft, was motivated by a desire to punish Microsoft … . It is difficult to conclude that the breakup is anything but punitive," Microsoft attorney Steven Holley said.

In the Jan. 8 issue of the New Yorker magazine, Judge Jackson said Mr. 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."

Separately, the judge compared Microsoft to the Newton Street Gang, which the judge sentenced on charges of racketeering and murder.

Microsoft said in its appeal that the comments showed Judge Jackson was prejudiced before ordering the company to split in two.

Mr. Holley also hammered Judge Jackson for failing to hold hearings before deciding what form his recommended punishment of the company would take. The judge said Redmond, Wash.-based Microsoft must break in two in a move referred to as structural relief and imposed a length of time on a list of other punishments, an action referred to as conduct relief.

The company repeatedly said the structural relief should be nullified, leaving Justice Department attorney David Frederick to defend the judge's breakup order. While Mr. Holley was free to deliver his criticism of the judge's breakup almost uninterrupted, Mr. Frederick faced questions from the moment he began speaking yesterday morning.

Mr. Frederick said the breakup of Microsoft is necessary to restore competition in the market for operating-system software.

The appeals court judges wanted to know whether the breakup order should be overturned if any part of Judge Jackson's decision was found faulty that Microsoft maintained a monopoly in the market for operating-system software and that it illegally tied the Internet Explorer browser to the monopoly operating-system software Windows.

Judge A. Raymond Randolph argued that forcing Microsoft to cease to operate as a single company would not destroy its monopoly.

"All it does is give rise to the potential for competition," which could reduce the Windows monopoly, he said.

Between defending Judge Jackson and defending his ruling that Microsoft be broken apart, the federal government's attorneys had a rough day, said William Kovacic, a George Washington University professor and antitrust analyst.

"The court is very concerned about the structural remedy, about whether that was the right solution. This was not a happy day for the government. There was very little in there to go well and not much that did," he said.

Kenneth W. Starr, the former independent counsel who is serving as an attorney for a coalition of high-tech companies opposing Microsoft, said breaking the software company in two is crucial.

"That is the remedy to restore competition," he said following the hearing.

Mr. Kovacic said that even though the court yesterday indicated it is skeptical of a breakup, it is unlikely the judges will dispute all of Judge Jackson's findings or overturn all of the penalties he levied against the company.

But there is a chance that some of Judge Jackson's findings will be overturned and the case be sent back to a lower court.

Because the appeals court judges particularly Chief Judge Edwards seemed peeved at Judge Jackson, they are likely to remove him from having a role in the rest of the case if any part of it is sent back to the lower court for review, Mr. Kovacic said.

"I think clearly there are a few members who want [Judge Jackson's] head," he said.

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