Appellees' Motion for Immediate Issuance of Mandate

Date: 
Friday, July 13, 2001
Document Type: 
Motions and Memoranda - Miscellaneous
This document is available in two formats: this web page (for browsing content) and PDF (comparable to original document formatting). To view the PDF you will need Acrobat Reader, which may be downloaded from the Adobe site. For an official signed copy, please contact the Antitrust Documents Group.


CASE ARGUED FEBRUARY 26 & 27, 2001, DECIDED JUNE 28, 2001

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT



No. 00-5212
UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,
  
v.

MICROSOFT CORPORATION,

                     Defendant-Appellant



Consolidated with No. 00-5213


APPELLEES' MOTION FOR IMMEDIATE ISSUANCE OF MANDATE


This Court has directed the Clerk to withhold issuance of the mandate until "seven days after disposition of any timely petition for rehearing." Order of June 28, 2001, citing D.C. Cir. Rule 41. The Court specified, however, that its instruction was "without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown." Id. In light of the exceptional importance of this case, and the strong public interest in prompt entry of a decree providing an effective remedy for Microsoft's illegal conduct, the United States and the State Plaintiffs respectfully move that the Court direct the Clerk to issue the mandate immediately.

1. As the Court recognized in deciding at the outset to hear the appeal en banc, this case is of "exceptional importance." Orders of June 13, 2000. The Court has since found that Microsoft had a monopoly with respect to Intel-compatible PC operating systems, that Microsoft behaved anticompetitively, and that its anticompetitive conduct contributed to maintenance of its monopoly power, in violation of Section 2 of the Sherman Act. Microsoft's operating system affects millions of businesses and hundreds of millions of consumers worldwide. Delay in imposing an effective remedy inflicts substantial and widespread consumer injury and needlessly prolongs uncertainty in the computer industry. In a dynamic marketplace, speed is of the essence in remedying the effects of unlawful exclusionary conduct designed to crush nascent competitive technologies. In these circumstances, the public interest is plainly served by allowing the proceedings on remand to go forward as quickly as possible.

2. There is no good reason to delay issuance of the mandate until mid-August or later. The United States and the State Plaintiffs do not intend to petition for rehearing. Whether or not Microsoft decides to seek rehearing, the Court has already devoted unusually extensive resources to this matter, including two days of oral argument. There is no reason to believe that a petition for rehearing of this per curiam en banc decision would be granted and, therefore, no reason to await any such filing before issuing the mandate.

Furthermore, the United States and the State Plaintiffs do not intend to seek Supreme Court review of the case at this stage. While the United States and the State Plaintiffs do not know whether Microsoft will seek such review,(1) the possibility that Microsoft might choose to file a petition for certiorari does not preclude immediate issuance of the mandate. The Court's Order does not direct the Clerk to withhold the mandate pending the filing of any petition for certiorari. If Microsoft sought to stay the issuance of the mandate beyond the period specified in the Order, it would be required to file a motion showing that the petition for certiorari "would present a substantial question and that there is good cause for a stay." Fed. R. App. P. 41(d)(2)(A). See also D.C. Cir. Rule 41(a)(2) (motion for stay of mandate must "set[] forth facts showing good cause"); Johnson v. Bechtel Associates Prof'l. Corp., 801 F.2d 412, 415 (D.C. Cir. 1986). We have no reason to believe that Microsoft would be able to meet that standard.

For the foregoing reasons, the Court should direct the Clerk to issue the mandate immediately. We have informed counsel for Microsoft of our intention to file this motion.

     Respectfully submitted.


ELIOT SPITZER
   Attorney General of New York
PREETA D. BANSAL
  Solicitor General
JAY L. HIMES
  Chief, Antitrust Bureau
MELANIE L. OXHORN
  Assistant Solicitor General
RICHARD L. SCHWARTZ
  Assistant Attorney General
   120 Broadway
   New York, New York 10271
   (212) 416-6229

JAMES E. DOYLE
  Attorney General of Wisconsin
KEVIN J. O'CONNOR
   Assistant Attorney General
   Office of Attorney General
   State Capitol
   Post Office Box 7857, Suite 114 East
   Madison WI 53707-7857

___________________________
CHARLES A. JAMES
  Assistant Attorney General

DEBORAH P. HERMAN
   Deputy Assistant Attorney General

CATHERINE G. O'SULLIVAN
ROBERT B. NICHOLSON
ADAM D. HIRSH
ANDREA LIMMER
DAVID SEIDMAN
  Attorneys

  U.S. Department of Justice
  601 D Street, N.W.
  Washington, D.C. 20530
   (202) 514-2413

July 13, 2001


CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of July, 2001, I caused one copy of the foregoing APPELLEES' MOTION FOR IMMEDIATE ISSUANCE OF MANDATE to be served by facsimile, followed by the first class U.S. Mail, postage prepaid, or by hand upon:

Bradley P. Smith     (By hand)
Sullivan & Cromwell
1701 Pennsylvania Ave., N.W.
Washington, DC 20006
(202) 956-7500
Counsel for Appellant Microsoft

Randall J. Boe
Theodore W. Ullyot
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166
Tel: (703) 448-8700
Fax: (703) 265-1495
Counsel for AOL

Donald M. Falk
Mayer, Brown & Platt
1909 K Street, N.W.
Washington, D.C. 20001
Tel: (202) 263-3000
Fax: (202) 263-3300
Counsel for SIIA

Carl Lundgren
Valmarpro Antitrust
5035 South 25th Street
Arlington, Virginia 22206-1057
Tel: (703) 235-1910
Fax: (703) 235-5551

Edward J. Black
Jason M. Mahler
Computer & Communications
Industry Association
666 Eleventh Street, N.W.
Washington, D.C. 20001
Tel: (202) 783-0070
Fax: (202) 783-0534
Counsel for CCIA

Louis R. Cohen
C. Boyden Gray
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037-1420
Tel: (202) 663-6000
Fax: (202) 663-6363
Counsel for ACT and CompTIA

Robert S. Getman
359 West 29th Street
Suite G
New York, New York 10001
Tel: (212) 594-6721
Fax: (212) 594-6732
Counsel for TAFOL

Robert H. Bork
1150 17th Street, N.W.
Washington, D.C. 20036
Tel: (202) 862-5851
Fax: (202) 862-5899
Counsel for ProComp

John Warden
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Tel: (212) 558-4000
Counsel for Appellant Microsoft

Paul T. Cappuccio
Time Warner
75 Rockefeller Plaza
Floor 28
New York, New York 10019
Counsel for AOL

David Burton (By First Class Mail)
333 North Fairfax Street
Suite 302
Alexandria, Virginia 22314
Counsel for CMDC

Dr. Lee Hollaar
Professor of Computing Science
School of Computing
University of Utah
3190 Merrill Engineering Building
Salt Lake City, Utah 84112
Tel: (801) 581-3203
Fax: (810) 581-5843

William Neukom
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052
Tel: (425) 869-1327
Counsel for Appellant Microsoft

  ______________________
Catherine G. O'Sullivan
(202) 514-2413

FOOTNOTES

1. The United States and the State Plaintiffs reserve the right, of course, to file a conditional cross-petition for certiorari in the event that Microsoft seeks Supreme Court review at this time.

Attachments: 
Updated June 30, 2015