WASHINGTON -- A Microsoft lawyer asserted Tuesday that the judge who ordered the company's breakup was "motivated by a desire to punish" the software giant. The government countered that evidence was "quite clear" that Microsoft acted unlawfully to stifle competition.
Attorney Steven Holley and a second company attorney weren't alone in attacking U.S. District Judge Thomas Penfield Jackson, who has been critical of the company in media interviews.
Two of the seven appellate judges of the U.S. Court of Appeals for the District of Columbia also appeared critical of Jackson -- who also made unfavorable remarks about the appeals court.
But David Frederick, a Justice Department attorney, argued Microsoft was trying to "strangle a nascent competitor" -- the rival Netscape browser.
The chief judge of the court, Harry Edwards, said "the district court made no finding of the appropriate market" for Internet browsers.
Judge David Sentelle added, "If there isn't a proper finding ... then we would have to at least send this back for some trial judge to weigh the facts, wouldn't we?" Normally, a case would be sent back to the same trial judge.
Jackson last June ordered Microsoft broken into two competing companies after finding the company acted illegally to stifle competition.
Holley argued, "The district court had no right to presume that the government was acting in the public interest" in seeking to break up the company.
"The most draconian aspect of this decree, the breakup of Microsoft, was motivated by a desire to punish Microsoft."
"The district court's recitation of this event is quite confused," company lawyer Richard Urowsky said in describing a 1995 meeting between Microsoft and Netscape officials.
Frederick acknowledged "there was some lack of clarity" in Jackson's findings about the Microsoft-Netscape meeting. But he insisted the evidence was "quite clear" that Microsoft's purpose was to harm rival Netscape.
Jackson, in the Jan. 8 issue of The New Yorker, said of Microsoft founder Bill Gates:
"I think he has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses." He said company officials "don't act like grown-ups!"
Microsoft said in its appeal that the comments showed Jackson was prejudiced when he ordered the company to be divided into two parts.
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