DOJ asks judge to reject Microsoft motion as Gates blows off ruling

For months, Microsoft has promised to appeal any ruling in its antitrust case, but the company has been mum since its dramatic legal smack-down last week. So now the DOJ is calling Microsoft's bluff, asking the court to delay its ruling on a Microsoft request to stay the final ruling until the company actually files its appeal. It's an interesting legal strategy, one that demonstrates the inadequacy of Microsoft's legal help, which, analysts say, should have had the appeal ready to roll immediately after the ruling was issued. Instead, the company continues to muster nothing less than indignation and a general misunderstanding of its predicament. On Tuesday, Microsoft chairman Bill Gates once again downplayed the most significant legal defeat in the history of the personal computer industry as nothing more than an "unfortunate distraction," a rather oblivious conclusion. But it's not the only time this company has thumbed its nose at the case against it. And as the stakes get higher, it's continued defiance seems increasingly self-destructive.

Last week, when the final ruling was announced, Microsoft filed a short request that the ruling be stayed until all of its legal options have been played out. But it never actually filed an appeal, an odd circumstance given its repeated pledges to do so. So DOJ lawyers have fired off a blistering 17-page legal brief asking Judge Thomas Penfield Jackson to hold his ruling on Microsoft's request until the company files its appeal. Then, the DOJ says, it wants the judge to deny Microsoft's stay request. Microsoft immediately lashed out at the unexpected filing, accusing the government of trying to "delay the process." But the DOJ says it wants the Microsoft case to head immediately to the Supreme Court, skipping a lengthy review at the D.C. Court of Appeals.

Furthermore, the government says, Microsoft has failed to show why a stay is warranted. Under terms of the final judgment, Microsoft would have to present its plan to breakup the company within 90 days of the judgment. But Microsoft's attempt at pushing back this date lacks any reasoning, the DOJ says. For example, the company has not demonstrated why it thinks it would win on appeal, removing the need to create a breakup plan. And Microsoft has done nothing to show why consumers would be harmed if the ruling wasn't stayed. "Microsoft has no legitimate reason to delay filing its notice of appeal," the DOJ reports. It's failure to file an appeal "is simply an attempt to manipulate the Court and thwart the operation of the Expediting Act."

As the legal drama unfolds, Microsoft executives continue their denouncement of the breakup plan. At a Tuesday press conference, company chairman Bill Gates took questions only from those reporters whose questions had been approved in advance, giving him a chance to reiterate a few pat phrases from Microsoft's recent television commercials. "We all know this is a fast-paced competitive business," he said. "We thrive on competition. If anything this kind of misguided lawsuit can do is draw our team together." But Gates continued his verbal attack on the ruling, saying that it "did not reflect reality. We, as a company, are moving full speed ahead on all advances. The lawsuit doesn't change anything. Our position on this is very simple. This is a case that will be decided by a higher level of court."

Unfortunately for Microsoft, however, the current judge isn't quite done with the company yet. Judge Jackson can decide whether the request for staying the ruling is granted and Microsoft's continued belligerence is sure to rankle a judge that wasn't too fond of Microsoft to begin with

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