In United States vs Microsoft, a 2001 anti-trust case in which the DoJ, 18 states and the District of Columbia alleged that Microsoft had abused its monopoly position was heard by Judge Jackson and he found for the plaintiffs and ordered the company to be broken into two separate units.

However, the judgement was overturned on appeal with the appeal judge accusing Judge Jackson of unethical behaviour to which Judge Jackson replied that Microsoft executives had

proved, time and time again, to be inaccurate, misleading, evasive and transparently false ... Microsoft is a company with an institutional disdain for both the truth and for rules of law that lesser entities must respect. It is also a company whose senior executives are not averse to offering specious testimony to support spurious defenses to claims of wrong-doing.

Q. Given that his findings of fact were not overturned why was Judge Jacksons original ruling overturned by the appeals court?

1 Answer 1


First of all, the case US v Microsoft was originally a 1998 case, not 2001. Jackson entered his judgment in June 2000. Microsoft appealed timely. It went from Jackson's district court, straight to the Supreme Court, using 15 U.S.C. §29(b), and the Supreme court issued 530 US 1301. While the states filed for being heard, the Supreme Court declined them, remanding the whole case back to the lower courts.

In No. 00-139, direct appeal [to the Supreme Court] is denied, and case is remanded to the United States Court of Appeals for the District of Columbia Circuit. The Clerk is directed to issue the judgment forthwith. In No. 00-261 [the request of the states to be heard], certiorari before judgment is denied.

The case thus went to the DC Circuit Court of Appeals, and due to the time it takes to schedule, became a 2000 case. The court noticed, that while Jackson was still on the case he had given interviews about it:

The Court of Appeals held that: [...] (6) district judge’s comments to the press while the case was pending required his disqualification on remand.

Immediately after the District Judge entered final judgment on June 7, 2000, accounts of interviews with him began appearing in the press. Some of the interviews were held after he entered final judgment. (p.107)

Microsoft urges the District Judge’s disqualification under § 455(a): a judge ‘‘shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’’ 28 U.S.C. § 455(a). The standard for disqualification under § 455(a) is an objective one. The question is whether a reasonable and informed observer would question the judge’s impartiality. (p.114)

Our application of Liljeberg leads us to conclude that the appropriate remedy for the violations of § 455(a) is disqualification of the District Judge retroactive only to the date he entered the order breaking up Microsoft. We therefore will vacate that order in its entirety and remand this case to a different District Judge, but will not set aside the existing Findings of Fact or Conclusions of Law (except insofar as specific findings are clearly erroneous or legal conclusions are incorrect). (p.116)

When Jackson gave the interviews, he violated the Code of Conduct for judges because the appeals process was not yet complete and he was still on the case. As such, he created the image, that he might not be impartial:

Canon 3A(6). The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality, which would violate Canon 2A. A judge may comment publicly on proceedings in which the judge is a litigant in a personal capacity, but not on mandamus proceedings when the judge is a litigant in an official capacity (but the judge may respond in accordance with Fed. R. App. P. 21(b)).

Jackson did not appear as he was to be heard in the Circuit Court. As shown above, the DC Circuit Court of Appeals found, he did violate the code of conduct and disqualified him under 28 U.S.C. § 455(a). While this did suffice to overturn the verdict prescribed by Jackson, the court did not throw out the findings of fact that had been issued well before the interviews and noted that the traditional setup might be inadequate for this case. They remanded back to a different judge to decide a remedy under a different scope.

The case didn't end there, Microsoft attempted to get even the findings of fact thrown out based on the very ruling that sent it back for remand, claiming that the judge had shown to be biased way earlier, during the trial and before the finding of facts. They did so by appealing a second time to the Supreme Court in August 2001 but the court rejected to hear the case in October.

In the end, DoJ and Microsoft settled in November 2001, the settlement was accepted by the District Court in 2002, and affirmed by the appeals court in 2004, as some states didn't want that one.

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