US appeals judges said on Tuesday they probably would overturn a court order breaking up Microsoft Corp unless they uphold all three antitrust violations found by the trial judge.
The final day of arguments before the seven-member appellate panel lent support to legal experts' predictions that the breakup order by US District Judge Thomas Penfield Jackson wouldn't survive.
If the appeals court can't agree with the full basis for Jackson's findings that Microsoft broke the law, "does it not necessarily follow that we have to send the remedy back for relitigation?" said Judge David Sentelle. "Don't we have to say the remedy is vacated for reconsideration?"
Members of the panel also denounced Jackson for talking to reporters, signaling he would be removed from the case and his findings given extra scrutiny. "The system would be a sham if all judges went around doing this," said Chief Judge Harry Edwards.
On Jackson's order to bust up Microsoft, Sentelle said it's "crystal clear the divestiture" was only triggered by the trial judge's ruling that Microsoft illegally tied the sale of its Internet Explorer to the Windows operating system. Such a harsh remedy couldn't rely on Jackson's determination the company illegally defended its Windows monopoly, Sentelle said.
The appeals court would have no legal basis for upholding the breakup if they only agreed with some of Jackson's central conclusions, judges said.
"Even if monopoly maintenance were affirmed in total without the tying, I don't know how this court concludes the remedy" is appropriate, said Judge Douglas H. Ginsburg.
The appeals court signaled during the first day of arguments Monday that it is troubled by Jackson's ruling that Microsoft illegally bolted Internet Explorer to Windows. Still, the judges suggested they might uphold his ruling that the company illegally maintained its Windows monopoly for personal computer operating systems.
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