WASHINGTON — Microsoft will try to convince an appeals court this week that the breakup of the software giant is unwarranted in a high stakes legal showdown that may focus as much on the judge who made the ruling as the legal underpinnings for it.
U.S. District Judge Thomas Penfield Jackson’s comments outside the courtroom – comparing Microsoft chairman Bill Gates to Napoleon and suggesting company officials were not “grown-ups” – have injected a new wildcard into the case.
Experts say that makes the job more difficult for government lawyers who are trying to preserve their historic antitrust victory ordering the breakup of Microsoft for anticompetitive practices.
“In conscious or unconscious ways, the court of appeals will feel fewer inhibitions to second-guess Jackson’s findings concerning crucial pieces of evidence,” George Washington University law professor William Kovacic predicted. “Nothing good will come to the government plaintiffs from all of this.”
Microsoft has “a 50 percent chance of walking completely” thanks to Jackson’s post-trial statements, University of Baltimore law professor Bob Lande said. Before the comments, he gave the government a 2-to-1 edge.
“Those wonderful findings of fact all have a cloud cast on them because of Jackson’s unjudicial statements,” Lande said.
In interviews with reporters and authors writing books on Microsoft’s legal ordeal, Jackson made scathing attacks on Gates, the company’s legal team and the U.S. Court of Appeals for the District of Columbia Circuit, which was to hear the company’s appeal Monday and Tuesday.
Jackson accused the appeals court of “making up 90 percent of the facts on their own” in an earlier Microsoft ruling, and said the judges were “supercilious” and without practical trial experience.
The appeals court set an unusual amount of time for the argument – six hours over two days, even more than the parties requested.
The extra time will be spent questioning Jackson’s factual findings, in which he laid out how he thought Microsoft used anticompetitive practices and harmed consumers, the appellate judges said.
At least publicly, the Justice Department and Microsoft have both played down the significance of Jackson’s words.
“The press was always hammering the Microsoft mistakes and having fun with them, and I think the judge piled on,” said C. Boyden Gray, a one-time adviser to former President Bush and now a Microsoft supporter. “I don’t think it will affect the outcome.”