Microsoft Wins Appeal On Special Master Issue

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February 03, 1998 (11:50 AM EST)

Microsoft Wins Appeal On Special Master Issue

By Christine Casatelli,

In a small victory for Microsoft, an appeals court granted a request late Monday by the software company to stop the investigation by a special master who was appointed by U.S. District Court Judge Thomas Penfield Jackson.

"We are gratified that the court of appeals acted quickly," said William Neukom, Microsoft senior vice president for law and corporate affairs, in a statement.

In December, Jackson named Lawrence Lessig, a Harvard law professor, as special master in the Justice Department's case against Microsoft. The DOJ is investigating whether the software giant is in violation of antitrust law.

The appellate court's granting of Microsoft's request is a strong sign that Lessig may be barred permanently, according to one antitrust attorney who has been following the case.

"It's not likely they would issue a stay if they were going to uphold the appointment [of Lessig]," said Rich Gray, of Bergeson, Eliopoulos, Grady & Gray in San Jose, Calif.

By late December, Microsoft asked Jackson to cancel the special master's investigation because Microsoft had not been consulted before his appointment, and because the investigation exceeded the scope of laws that enable judges to appoint special masters.

Microsoft also said that Lessig is biased against the company, noting that he participated in a legal forum at Harvard Law School last year titled "Should Microsoft Be Allowed to Swallow the Net?" and on charges that he sent anti-Microsoft e-mail messages to Netscape attorneys last summer.

Lessig's removal would have limited legal implications, Gray said. "But as a signal of the court's feeling, it's significant," he added.

In its ruling, the appeals court agreed to hear Microsoft's request for a permanent revocation of the role of special master on April 21. On that date, the court will also hear Microsoft's appeal of the District Court's Dec. 11, 1997, preliminary injunction that requires Microsoft to offer computer makers the option of licensing the Windows 95 operating system without any Microsoft Internet browser software.

-- Malcom Maclachlan contributed to this report