USA Today
WASHINGTON — An appeals court lambasted the judge who ordered Microsoft split in two for his refusal to hold hearings on the drastic penalty and his comments to the media, signaling the breakup plan is likely doomed.
The U.S. Court of Appeals, in the second and final day of hearings yesterday, suggested it will almost certainly send the landmark case back to another judge for further hearings on sanctions.
But a breakup may well not be in the offing at that point because the court seems inclined to reverse lower court Judge Thomas Penfield Jackson on key parts of his June ruling that Microsoft stifled software competition, experts say.
In a rare thrashing of a fellow jurist, the visibly irate judges suggested they will give less deference to Jackson’s findings because of his comments. It’s unlikely they will toss out his entire decision, as Microsoft asked, experts say.
Judge David Tatel seemed most troubled by Jackson’s comparison of Microsoft to gangland killers who never concede guilt and drug traffickers who get caught by wiretaps. Microsoft was partly done in by executives’ e-mail.
"Wouldn’t a reasonable person hearing those comments think the judge is biased?" Tatel asked.
"There are lots of things we think and feel about advocates," added Chief Judge Harry Edwards. "That doesn’t mean we’re going to go off at the mouth."
Government lawyer John Roberts said Jackson’s remarks do not show bias because he did not form his opinions before the trial started. Jackson spoke to several reporters after he had made a preliminary ruling.
Also troubling the panel was Jackson’s refusal to hold more than one hearing on the breakup and the strict curbs on Microsoft’s practices. "The defendant has the right to an evidentiary hearing on remedy" because it contested the feasibility and impact of the plan, Tatel said.
Indeed, the judges themselves questioned the wisdom of splitting Microsoft into a company for the Windows operating system and another for its Web sites and applications, such as Word.
Noting that Jackson found Microsoft hobbled competition in the operating-system market, Judge Stephen Williams said, "I can understand a split into three companies, each of which gets Windows and they all compete."
In the end, the court will likely toss out the breakup and impose "pretty light-handed" curbs on Microsoft, says William Kovacic of George Washington University Law School.
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