Fail, Abort, Retry?
So, we find ourselves once again in the sixth floor courtroom of the E. Barrett Prettyman Federal Courthouse in the District of Columbia, under the watchful white marble eyes of Moses and Justinian and other marble lawgivers who wouldn’t have given a damn about the Sherman Antitrust Act. Microsoft sits to the right, with William Neukom, their mute lead attorney, putting some of the usual suspects–Sullivan & Cromwell’s John Warden, Steve Holley, and Richard Urowsky–through their paces. The Justice Department sits to the left, with very few familiar faces at the table. The baton has mostly passed to Jeffrey Minear and John Roberts, although some old familiar faces dot the crowd.
The D.C. Circuit Court of Appeals is sitting en banc, which means that seven of them are hearing this case, rather than merely three. They have also allocated two full days to oral argument, as opposed to an hour, and they have set aside a whole hour tomorrow to hear argument on whether the District Court’s Judge Thomas Penfield Jackson showed outrageous bias (as opposed to just horrifying judgment) by spewing forth his opinions about the trial to the media. The judges on the bench today, from left to right, are David Tatel, David Sentelle, Stephen Williams, Chief Judge Harry Edwards, Douglas Ginsburg, A. Raymond Randolph, and Judith Rogers.
Among the other luminaries in court are Kenneth Starr and pinged Supreme Court nominee Robert Bork; they have both signed on with a pro-DOJ organization and, as the hearing opens, are doing some of that conspicuous mingling for which David Boies and Michael Lacovara were once famous. Boies is not here, and Lacovara, while here, tells me he’s just an observer. Which brings us to small irony No. 1.
Why is it that Microsoft, which lost so much goodwill in the lower court by fielding a sneering team of aloof Sullivan & Cromwell litigators, has benched Lacovara? The one human face on the entire Microsoft roster has been replaced by Richard Urowsky–a man so sneering and aloof that he frequently cuts off the judges today with patronizing rejoinders and condescending lectures? He says “li-ter-al-ly” three times; which might just be the product of fantastic diction, but it comes off sounding like children’s programming.
Urowsky’s condescension is doubly ironic in light of irony No. 2, pointed out to me joyfully by my colleague David Wilson of the Los Angeles Times. Almost before he’s begun his presentation, Urowsky is assaulted by Judges Sentelle and Tatel who ask him–in judge code–how Microsoft could have been so utterly stupid as to not appeal Judge Jackson’s finding of facts. “Since the findings of fact are binding on us, unless demonstrated to be clearly erroneous, I don’t see how you can get a reversal on this part of your case,” Tatel shrugs. Now why would Microsoft hobble the very judges most likely to help them out on appeal by failing to appeal Jackson’s goofy factual determinations?
Judge Edwards then says the word “irony” for the first of many times today–pointing out that Microsoft insists on counting the so-called “middleware” market in the relevant market share but also counting it out when it suits them. (Middleware is software that can live on top of a platform and operate, as a browser does, and could thus eventually become a threat to Windows.)
At issue today is Jackson’s ruling that Microsoft both had and abused its monopoly power in the PC operating system market by bundling or “tying” its browser, Internet Explorer, into its operating system, Windows, to “cut off the air supply” to Netscape’s rival browser, Navigator. Judge Jackson ordered last June that Microsoft would have to be split into two parts. Ironically, Urowsky’s whole argument is predicated upon raving about Netscape’s performance so as to demonstrate that Navigator was never foreclosed from competing on the browser market. Again Sentelle and Tatel challenge Urowsky on Microsoft’s failure to appeal the district court’s factual findings on market definition.
Judge Randolph then uses the word “ironic” to describe one of the great tensions of this case: Microsoft paints Navigator as a genuine competitor whenever they argue for its inclusion in the market share definition, but then argue they were never a genuine competitor when arguing about causation. Urowsky is asked whether the record reflects an increase in the number of service calls when two browsers appear on the desktop the first time a user boots up.
“There is a scrap of evidence,” replies Urowsky.
“This is our standard of review!” bursts Tatel.
And Sentelle can’t stand it either: “You thought we were a jury, and you could lay forth your view of the evidence. You say there’s a scrap of evidence! That supports a finding of fact.” They might as well be saying, “We wanted to help you boneheads, but you can’t get us to look at this thing from scratch. WHY DIDN’T YOU APPEAL THE FACTUAL FINDINGS???”
Then Ginsburg begins to hum the refrain that will be heard lilting under the next small irony of this case: That this case is all about replacing one monopoly (Microsoft’s) with another.
When DOJ attorney Jeffrey Minear rises to speak, he is almost immediately confronted by Judge Edwards’ assessment of this case: “Whether an alleged Microsoft monopoly should be replaced by a Netscape-Sun middleware monopoly.” At which point he launches into a hypothetical about a “paranoid monopolist who gets up in the middle of the night, shooting at any movement” and feels the need to put a grocery chain out of business.
“But a grocery store poses no threat to Microsoft’s monopoly,” replies Minear.
“… and nothing in the record shows Microsoft has an interest in middleware,” retorts Edwards. After a few minutes, Edwards adds: “We’re all asking the same question. Is one monopolist replacing another? Are we fighting for the newest, latest monopolist?” Ironic because all along Microsoft had been claiming that this suit was nothing more than the government carrying Netscape’s water for them.
Edwards, who could teach Alanis Morissette a thing or two about ironic, asks yet another big philosophical question about what Microsoft was allowed to do, assuming it held monopoly power in the operating systems market, to compete with Netscape. “What are they supposed to do if the next stage is a monopoly too?”
The remainder of the morning goes to a very long, verrrry ironic colloquy about how Microsoft could have used its monopoly power to destroy Netscape if Netscape was on 22 percent of the computers shipped in 1998, and if 60 million people downloaded it.
And off to lunch …
In the afternoon hearing, the gloves come off as the judges more or less blistered John Roberts, arguing for the DOJ, on the government’s tying claim. First, Edwards climbs all over him for suggesting there might be a market for browserless operating systems. Then Williams essentially tells him that none of the precedents in case law are of any help to him. And when things can’t seem to get worse, Edwards gives a preview of things to come tomorrow.
Referring to Justice Jackson’s findings of fact he blurts, “These are hard to review by an appellate court.” He goes on, “When I find factual findings that look conclusory and no citations to anything, I don’t think my obligation is to defer to them.” To which Williams soon adds, “Looking beyond conclusory terms here …”
Which leads to the most truly astonishing irony of them all. Microsoft gets shelled because Judge Jackson thinks Bill Gates is on trial. Now, the D.C. Circuit, which has already reversed Jackson once in 1998 on a preliminary injunction, starts to signal that Jackson’s incredibly broad assertions labeled “findings of facts” are on trial. And tomorrow, we may well discover that Jackson himself–a man unable to resist the siren’s song of 15 minutes of Sunday morning talk show fame–is the only issue on appeal.
Click herefor earlier coverage of the Microsoft trial.