Judge's Critique of Microsoft Raises Eyebrows

Comments disparaging Microsoft and its attorney, made by the federal district judge that presided over the antitrust case, are raising questions of whether he can remain unbiased if the case returns to his Washington, D.C. courtroom.

U.S. District Court Judge Thomas Penfield Jackson doesn't trust Microsoft and questions why the company's lawyer William Neukom didn't negotiate a settlement in the landmark antitrust case, he tells the New Yorker magazine in its current issue. He also says he doesn't think that Neukom is "very smart."

The case, brought by the U.S. Department of Justice and 19 state attorneys general, is currently under appeal. They contend, and Jackson ruled, that Microsoft illegally used its monopoly in PC operating systems to quash competition in the Internet browser market.

"I think that it is highly unusual for a judge to talk about a case even after the fact," says Bob Schneider, an intellectual property attorney with Chapman and Cutler in Chicago. "It's okay in a court opinion. To go on the record is highly unusual and even improper. It does kind of cloud any kind of remand that goes back to him."

Jackson has written strongly worded opinions against Microsoft during the two major phases of the antitrust case. He also gave a frank interview to the Wall Street Journal shortly after his final ruling. But it is rare for a judge to speak so frankly when a case remains under appeal, Schneider says.

"It will certainly provide arguments for Microsoft to say the judge was prejudiced," Schneider says. "I would think the DOJ would not want him to talk at all."

Under certain circumstances, the U.S. Court of Appeals could send the case back to Jackson. Microsoft already has expressed displeasure with Jackson's public comments and questioned his conduct during the case.

"The district judge here deliberately chose to discuss the merits of the case in public, expressing strong personal views about Microsoft and its executives in person, in print and on the radio, both during and after trial," Microsoft attorneys wrote in a brief to the appellate court in November.

Irritated With Gates

Jackson is quoted in the January 15 issue of the New Yorker as saying that Microsoft and Chair Bill Gates should not gain any special consideration during court proceedings.

Jackson also says he became irritated with what he calls Microsoft's "obstinacy," such as was displayed by Gates during his 20-hour videotaped deposition, and with apparent contradictions between the text of some Microsoft e-mail presented as evidence and the testimony of its witnesses.

Microsoft's "crime" was its hubris--that is, an oversized pride that prevented the company from acknowledging that U.S. antitrust laws applied to it, Jackson tells author Ken Auletta.

Jackson is "only half-joking" when, in the article, he says that if he were to propose a remedy, he'd "require Mr. Gates to write a book report." It would be a recent biography of Napoleon, Jackson adds, saying, "because I think he has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses."

Jackson tells the magazine he found it hard to believe Microsoft let the case go to a ruling. He blames Neucom for not settling before the case rattled financial markets, and suggests Microsoft should have been more honest during the proceedings.

"It would have dispelled to a large extent, any inference of malevolent motive," Jackson says. "It would have disclosed that they were genuinely concerned that there might have been some merit to the allegations of improper conduct on their part.... It would have gone largely to the matter of motive. In one sense, you have to give Microsoft credit for consistency. It has maintained, and continues to maintain, that it has done nothing amiss."