Microsoft Corp. claims that a court-appointed adviser in the U.S. Department of Justice's antitrust complaint against it is biased and will lead to additional delay in the case, according to documents filed yesterday.
In its latest brief filed with the U.S. Court of Appeals in Washington, D.C., Microsoft argued that the adviser - special master Lawrence Lessig, who is a Harvard University law professor - was improperly appointed without Microsoft's consent and is less qualified to interpret the issues than the U.S. District Court the case was filed in.
In addition, Microsoft claimed that contrary to the DOJ's arguments, the lower court will be required by federal rules to accept Lessig's findings unless they are "clearly erroneous," and that the case will be dragged out because both sides will have to present their evidence and arguments twice -- to both Lessig and then the court itself.
No "'exceptional condition' exists that could possibly justify the reference of this non-jury case to a special master," Microsoft's brief said.
In the brief, Microsoft said Lessig's impartiality "might reasonably be questioned" because of an e-mail Lessig sent to a friend who works at Netscape Communications Corp., a staunch Microsoft rival, that complained about Microsoft's Internet Explorer browser. In the e-mail, Lessig also compared his installing a Microsoft product on his Macintosh to "selling his soul."
The DOJ took Microsoft to court last October claiming the firm was violating a 1995 antitrust consent decree by forcing OEMs to license Internet Explorer along with Windows 95. A judge issued a preliminary injunction in December requiring Microsoft to unbundle the browser from the operating system.
Before the court could rule on a DOJ contempt-of-court request, Microsoft and the DOJ settled out of court. Microsoft agreed to offer Windows 95 versions with the Internet Explorer icon removed. However, Microsoft persisted in appealing the preliminary injunction and the appointment of Lessig to the case.
Oral arguments on the appeal are scheduled for April 21.
