On Thu, 8 Jun 2000, Bruce McCulley wrote:
> The appeals process may not be all that lengthy. I don't understand the
> details (maybe someone more knowledgeable can comment?), but I've heard that
> there exists a mechanism for an expedited appeal process that goes directly
> to the Supreme Court. Yesterday I looked for anything about that in the
> court documents I found on CNN but didn't see anything. However this
> morning the television newscast mentioned that Microsoft and DoJ differed on
> how the appeal should be handled, with DoJ favoring an appeal directly to
> the Supreme Court, so I'd infer that it's a possibility. Let's hope so, M$
> isn't likely to change their behavior while it drags out - as the Judge
> noted in his ruling yesterday!
>
> BTW, there were some pretty scathing comments in the court documents, a
> really fun read - talk about Microsoft bashing! Enjoy!!!!
>
> --Bruce McCulley
>
Check out the San Jose Mercury news (www.sjmercury.com). They have
links to the documents. They have also had good analysis, although I
haven't seen the analysis of Gray, the lawyer they've had following
the case.
As I understand, and from reading the relevant laws, under the Clayton
act, if an appeal is made (which MS has said they would), either party
can ask that it go straight to the Supreme Court. The Supreme Court,
as in all appeals to it, can:
1. Hear the case
2. Choose not to hear the case first, remanding it to the appeals
court for hearing.
3. Choose to approve the court's decision without comment (ending the
whole thing)
4. Choose to overturn the court's decision without comment (again
ending the case, but basically saying Judge Jackson got it wrong on
all counts).
DoJ has stated that they will ask that any appeal go to the Supreme
Court. MS wants option 2 to happen, as they have seen Jackson
overturned on appeal before, & hope to win there. The risk they take
is that the appeal will be to a 3-judge panel of the Circuit. It may
or may not be the same 3-judge panel that previously helped them. The
DoJ is hoping for number 3, but probably would settle for 1. No one I
have seen commenting seems to expect 4 to happen, given the finding
of facts. My guess is the Supreme Court will either choose 1 or 2.
Other issues for MS to worry about are:
The Finding of Fact. Again, all comment I've seen on the case agrees
that this is bullet-proof (it would need the courts to decide
basically that Judge Jackson was out of his mind, and did not get the
facts at all right. Given the extensive quotes in there, it's hard to
argue with it).
Their testimony. They faked evidence. Their own witnesses ended up
testifying to predatory practices.
Their intransigence. They continue to deny they have a monopoly,
despite the Finding of Fact. This is what seems to have gotten Judge
Jackson to go for the breakup: they continue their actions despite
court rulings. They violated the Consent Decree of 1995. Right after
the consent decree, Bill Gates got on Larry King Live & testified that
there would be no change of behavior as a result of the consent
decree. They continue to state that they will not change their
behavior.
For MS:
They are hoping to get a sympathetic panel. See above, plus the new
panel will have the full trial testimony available.
I feel they are hoping to show that Judge Jackson was prejudiced
against them. Some commentors have stated that they perposefully
antagonized him to make him rule against them, hoping to overturn on
appeal on the grounds that the was prejudiced. However, in watching
this trial, Judge Jackson seemed to keep giving them a lot of leeway
(he didn't even threaten perjury for the faked videotape). They may
be hoping to use the fact that the judge didn't give them time to
present evidence on the punishment phase as bias. Again, this is
taking a risk. They had time to comment, and chose to use the
comments to deny any wrong-doing, and to request more time.
We'll see how it plays out.
Note that IANAL.
jeff
>
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Jeffry Smith Technical Sales Consultant Mission Critical Linux
[EMAIL PROTECTED] phone:603.930.9379 fax:978.446.9470
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Thought for today: "Consider a spherical bear, in simple harmonic motion..."
-- Professor in the UCB physics department
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