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Court of Appeals Denies Microsoft's Stay Request

The U.S. Court of Appeals on Friday denied Microsoft Corp.'s request to delay sending its case back to the District Court.

Microsoft had wanted the case put on hold until the Supreme Court ruled on its request for an appeal. The Supreme Court has not decided yet whether it should take up the case.

The Appeals Court in late June overturned the order to break Microsoft into two companies, but let stand the legal findings that Microsoft abused a monopoly position in the client operating system market.

Microsoft's appeal to the Supreme Court hinges on the Appeals Court's strong condemnation of Judge Thomas Penfield Jackson's conduct during the original antitrust hearings. In its June opinion, the Appeals Court particularly objected to Jackson's having granted embargoed interviews to journalists before the case was finished.

In its Supreme Court appeal, Microsoft argues the Appeals Court should have thrown out Jackson's Findings of Fact and Conclusions of Law in the case because both legal judgments were issued after the secret interviews had begun.

"It appears that Microsoft has misconstrued our opinion, particularly with respect to what would have been required to justify vacating the district court's findings of fact and conclusions of law as a remedy for the violation of 28 U.S.C.," the court wrote Friday in denying the stay.

The Appeals Court judges wrote that Microsoft failed to demonstrate how it would be harmed if the district court started its rehearing before the Supreme Court decided on Microsoft's appeals petition.

The Department of Justice's response brief to the Supreme Court argues that the high court should not accept the case in a limited fashion now because the entire case is likely to wind up there eventually.

About the Author

Scott Bekker is editor in chief of Redmond Channel Partner magazine.

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