Abstract

The en banc decision of the D.C. Circuit in Microsoft1 partially overturning Judge Thomas Penfield Jackson’s findings of liability and fully rejecting his proposed break-up remedy sets the stage for a full reset. As discussed below, the appellate court upheld in large measure the lower court’s find-ing of monopoly maintenance in violation of Sec. 2 of the Sherman Act; overturned the finding of attempted monopolization of the browser mar-ket; and remanded for a rule of reason analysis of Microsoft’s alleged tying of Internet Explorer to Windows. The liability ruling alone would have sufficed to require remand for reconsideration of the appropriate remedy, but the appeals court also found the remedy process deficient and found that Judge Jackson’s out-of-court statements gave the appearance of bias. These provided additional sufficient reasons for overturning the remedy, and the extra-judicial statements sufficed to give Judge Jackson the boot on the remand. Putting to one side possible appeals to the U.S. Supreme Court,2