Judge Jackson Hears Oral Argument on Microsoft's Motion for Summary Judgment

(September 14, 1998)  U.S. District Court Judge Thomas Jackson held a lengthy hearing on Microsoft's Motion for Summary Judgment on Friday, September 11.  Afterward, Judge Jackson met privately in his chambers with the lead attorneys.  However, he did not rule on the motion, and made no other announcements.

Microsoft filed its Motion for Summary Judgment on August 10, asking that all or part of the case be dismissed.  The Department of Justice (DOJ) filed a lengthy opposition brief on August 31 which raised many new factual allegations not contained in the original Complaint, filed on May 18.

If the case is not dismissed, it will proceed to trial, which is currently scheduled to start on September 23.  However, several news media, including CNET and the Dow Jones News Wire, citing anonymous sources, have reported that the parties have agreed to request Judge Jackson to postpone the trial until October 15.

The hearing lasted for over two hours.  David Boies argued on behalf of the the DOJ; Houck argued for the state parties; and John Warden argued on behalf of Microsoft.  The attorneys did not raise any facts or legal arguments not already addressed in their written submissions.

Warden urged the Court to view the issues narrowly, as alleged in the original Complaint.  He then proceeded to outline the allegations in the Complaint, and Microsoft's response to each.

"Plaintiffs have alleged three violations of Sections 1 and 2 of the Sherman Act," said Warden.

• "First, Microsoft foreclosed competitors in an alleged browser market by tying;"
• "Second, Microsoft foreclosed competition in that same market by exclusionary agreements" with ISPs, ICPs, and OEMs; and
• Third, Microsoft refused to license OEMs to modify Windows.

Warden then argued that Microsoft has not violated the Sherman Act because,

• There was no tying because Windows is a single product;
• The challenged promotional and distribution agreements, taken in toto, have not foreclosed anyone; and
• Microsoft's rights under copyright law permit it to refuse to license OEMs to modify Windows.

As for the factual allegations raised for the first time by the DOJ in its Opposition brief, Warden said "the new additions are not properly in the case."  The DOJ recently advanced new allegations regarding Microsoft's use of Java, Microsoft's dealings with Intel, and Microsoft's dealings with Apple and Real Networks regarding streaming media.   "If other claims are to be added, an amended complaint is required," said Warden.

Warden several times in his argument referred to Netscape as a "ward of the government."   Netscape CEO James Barksdale is listed a trial witness on the DOJ's witness list.

Boies argued that the Complaint should be construed much more broadly.  "Our case is a lot broader than they would like it to be," said Boies.  "We make three basic claims:"

• "Monopolizing the browser market;"
• "Attempting to monopolize the browser market;" and
• "Unreasonable restraint of trade in violation of the Sherman Act."

Warden argued that the June 23 Opinion of the Court of Appeals in DOJ v. Microsoft I overturning Judge Jackson's preliminary injunction held that Windows and Internet Explorer are an integrated product, and therefore Microsoft is entitled to summary judgment on the tying claim. Warden argued that "all they have presented is, one, a rehash of what was before the Court of Appeals," and they did not seek a writ of certiorari from the Supreme Court to reverse the Court of Appeals.

Judge Jackson asked questions of both Boies and Houck about this.  Boies responded by trying to distinguish that opinion.  He said that the "Court of Appeals decision is not based on the facts" of this case, and that "it does not apply any legal framework to Section 2" of the Sherman Act.

Houck tried to pass off the Appeals Court's statements on the tying issue as mere "ruminations" and "dicta."

Some of Judge Jackson's other questions might reflect his thoughts on the case.

Regarding the integration of Internet Explorer into Windows, Judge Jackson asked Warden, "Why is it preferential to have that done by Microsoft rather than the OEM?"

Regarding the alleged exclusionary agreements with Internet service providers, content providers, and original equipment manufacturers, Judge Jackson asked Warden, "If your browser is all that good, why do you need" the agreements with ISPs, ICPs, and OEMs?

While only three attorneys argued their cases to the court, many other members of the legal and public relations teams were present.  In addition to John Warden, the Microsoft team included SVP William Neukom, former Antitrust Division head Charles Rule, and PR Manager Mark Murray. 

After the hearing, Attorneys Warden, Boies, and Houck met in chambers with Judge Jackson.  Emerging from the meeting, the attorneys would say only that case "management and scheduling" was discussed.

Boies and Houck, and then Microsoft's William Neukom, spoke to the press on the front steps of the courthouse after the hearing.  See also, Transcript of Boies' Press Conference.

Note: The U.S. District Court for the District of Columbia does not permit the use of tape recorders in its courtrooms.  All of the courtroom quotes of Judge Jackson, John Warden, and David Boies in this article are based on handwritten notes taken at the hearing, and have not been checked against an audio recording.