IP: Microsoft's rifle-shot

[David Farber <dave () farber net>]

> Date: Tue, 7 Aug 2001 17:05:27 -0400
> To: dave () farber net
> From: John Noble <jnoble () dgsys com>
> Subject: Microsoft's rifle-shot
>
> MS petitioned for cert and it's a pretty interesting move. The question
> presented is clearly the issue on which the Circuit Court is most
> vulnerable. It strikes me as particularly interesting that they do not
> challenge the Circuit Court's ruling upholding the sec. 1 judgment on any
> alternative ground. It seems to be solely on the basis of their refusal to
> set aside the judgment for the district court's violation of 28 USC 455.
> This is very politic.
>
> Question Presented
>
> The district judge engaged in secret discussions with select reporters
> about the merits of this case beginning no later than September 1999 and
> continuing over the succeeding eight months. (A119-20) During that period,
> the district judge entered his findings of fact, followed by his
> conclusions of law, and then a remedial decree. (A120) The court of appeals
> held that (i) the district judge's course of conduct flagrantly violated 28
> U.S.C. § 455(a) and the Code of Conduct for United States Judges (A118-19)
> and (ii) the district judge would have been immediately disqualified had he
> not concealed his misconduct by requiring the reporters to "embargo" their
> stories until after entry of judgment (A128). The court nevertheless
> disqualified the district judge "retroactive only to the imposition of the
> remedy" (A136), some eight months after the earliest known violation.
>
> The question presented for review is:
>
> Whether the court of appeals erred in not disqualifying the district judge
> as of the date of his earliest known violation of 28 U.S.C. § 455(a) and
> the Code for Conduct of United States Judges, thus requiring that his
> findings of fact and conclusions of law be vacated.



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