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Thursday, 28 June, 2001, 18:46 GMT 19:46 UK
Key excerpts of Microsoft ruling
The United States Court of Appeals for the District of Columbia has confirmed that Microsoft was guilty of anti-trust violations, but set aside the order to break up the company. BBC News Online documents key excerpts from the ruling.

[T]he District Court erred when it resolved the parties' remedies-phase factual disputes by consulting only the evidence introduced during trial and plaintiffs' remedies-phase submissions, without considering the evidence Microsoft sought to introduce.

We therefore vacate the District Court's final judgment, and remand with instructions to conduct a remedies-specific evidentiary hearing.
...

Of the three antitrust violations originally identified by the District Court, one is no longer viable: attempted monopolization of the browser market. ... One will be remanded for liability proceedings under a different legal standard: unlawful tying. ...

Only liability for the monopoly-maintenance violation has been affirmed - and even that we have revised.
...

In sum, we vacate the District Court's remedies decree for three reasons.

First, the District Court failed to hold an evidentiary hearing despite the presence of remedies-specific factual disputes.

Second, the court did not provide adequate reasons for its decreed remedies.

Finally, we have drastically altered the scope of Microsoft's liability,and it is for the District Court in the first instance to determine the propriety of a specific remedy for the limited ground of liability which we have upheld.
...

In short, we must vacate the remedies decree in its entirety and remand the case for a new determination. This court has drastically altered the District Court's conclusions on liability.

On remand, the District Court, after affording the parties a proper opportunity to be heard, can fashion an appropriate remedy for Microsoft's antitrust violations.In particular, the court should consider which of the decree's conduct restrictions remain viable in light of our modification of the original liability decision.
...

We recognize that it would be extraordinary to disqualify a judge for bias or appearance of partiality when his remarks arguably reflected what he learned,or what he thought he learned, during the proceedings. ... But this "extrajudicial source" rule has no bearing on the case before us.

The problem here is not just what the District Judge said, but to whom he said it and when.

His crude characterizations of Microsoft, his frequent denigrations of Bill Gates, his mule trainer analogy as a reason for his remedy - all of these remarks and others might not have given rise to a violation of the Canons or of 455(a) had he uttered them from the bench.
...

It is an altogether different matter when the statements are made outside the courtroom, in private meetings unknown to the parties, in anticipation that ultimately the Judge's remarks would be reported. Rather than manifesting neutrality and impartiality, the reports of the interviews with the District Judge convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in the stories they write.

Members of the public may reasonably question whether the District Judge's desire for press coverage influenced his judgments, indeed whether a publicity-seeking judge might consciously or subconsciously seek the publicity-maximizing outcome.

We believe, therefore,that the District Judge's interviews with reporters created an appearance that he was not acting impartially, as the Code of Conduct and 455(a) require.
...

[T]he appropriate remedy for the violations of 455(a) is disqualification of the District Judge retroactive only to the date he entered the order breaking up Microsoft.

We therefore will vacate that order in its entirety and remand this case to a different District Judge, but will not set aside the existing Findings of Fact or Conclusions of Law (except insofar as specific findings are clearly erroneous or legal conclusions are incorrect).

This partially retroactive disqualification minimizes the risk of injustice to the parties and the damage to public confidence in the judicial process. Although the violations of the Code of Conduct and 455(a) were serious,full retroactive disqualification is unnecessary.

It would unduly penalize plaintiffs, who were innocent and unaware of the misconduct,and would have only slight marginal deterrent effect.

Most important, full retroactive disqualification is unnecessary to protect Microsoft's right to an impartial adjudication.

The District Judge's conduct destroyed the appearance of impartiality.

Microsoft neither alleged nor demonstrated that it rose to the level of actual bias or prejudice.There is no reason to presume that everything the District Judge did is suspect.
...

Although Microsoft challenged very few of the findings as clearly erroneous, we have carefully reviewed the entire record and discern no basis to suppose that actual bias infected his factual findings.

The most serious judicial misconduct occurred near or during the remedial stage. It is therefore commensurate that our remedy focus on that stage of the case.The District Judge's impatience with what he viewed as intransigence on the part of the company; his refusal to allow an evidentiary hearing; his analogizing Microsoft to Japan at the end of World War II; his story about the mule - all of these out-of-court remarks and others, plus the Judge's evident efforts to please the press, would give a reasonable, informed observer cause to question his impartiality in ordering the company split in two.

To repeat, we disqualify the District Judge retroactive only to the imposition of the remedy,and thus vacate the remedy order for the reasons given in Section V and because of the appearance of partiality created by the District Judge's misconduct.


The settlement

Appeal court ruling

Appeal hearing

Analysis
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28 Jun 01 | Business
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