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Special Event

Asst. Attorney General Joel Klein Hold Press Briefing on Microsoft Breakup Order

Aired June 8, 2000 - 9:33 a.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

BILL HEMMER, CNN ANCHOR: Right now, Joel Klein along with the attorney general speaking at the Justice Department on this matter.

(JOINED IN PROGRESS)

JOEL KLEIN, ASST. ATTORNEY GENERAL: However, there's real dynamic activity going on in the market today affecting a wide range of developments and products. And the remedies that we would like to see implemented are straightforward remedies, things like Microsoft not being able to intimidate computer manufacturers who choose to select other people's products, things like their not illegally tying two products together as a way to force them on consumers, and so forth, things that are really I think rather basic and fundamental.

And during the time of the appeal, it's very important that further harm to the market, much of which has been thoroughly documented by the court, not take place.

Let me use that as just the opportunity to say that's all the more reason why we should have an expedited appeal to the Supreme Court. We should put those remedies in place, but it's very important to get a final ruling before the United States Supreme Court.

And I was quite pleased last night, listening to Mr. Gates, that he would like an expedited ruling as well. And he seemed concerned that because of the states' case, that that would somehow prevent that from going to the Supreme Court. But I can assure that that would be no prohibition whatsoever.

KLEIN: The state case is consolidated with ours. And in any event, of course, if the Supreme Court were to rule on our case, it would be the law of the land.

So for all those reasons, I think we need the temporary remedies to protect against harm during the appeal to the extent we can, and I would like to see the case immediately reviewed by the Supreme Court.

QUESTION: Mr. Klein, can you explain for us procedurally what happens, who files what, then what do you file? I know that -- doesn't the company have to ask -- file notice of appeal first before you can ask for the expedited review and so forth? Can you walk us through that? KLEIN: First of all, Microsoft has filed a stay before the Federal District Court, and we will file our papers in response to that in due course. Then...

QUESTION: Let me stop you right there. Do you have a time limit, a number of days, by which you must file your response?

KLEIN: We do not and the court has issued no time limit at this point.

The second thing that will happen is, as you observed, Microsoft will file -- they've said they will file their notice of appeal shortly. When they do, we will then file a motion in Federal District Court, pursuant to the Expediting Act, for the case to be certified by Judge Jackson to the United States Supreme Court.

If Judge Jackson grants that motion and certifies the case, then the case will be docketed in the Supreme Court like any other Supreme Court case, and the proceedings will take place.

KLEIN: The court has the option of granting plenary review or, if it decides, it can remand it to the Court of Appeals. If it grants plenary review, I believe the case can be argued reasonably early next term and brought to a conclusion early in 2001, would be my anticipation.

QUESTION: Since the Expediting Act was passed, do you have any idea how often the court has been asked to expedite a case? And how often it has said yes or no?

KLEIN: I'm willing to answer it, if you understand that I'm not certain about the answer. I think the answer is twice relating to the AT&T litigation. And in both cases, I believe the court took the case and summarily affirmed, did not grant plenary review.

But of course, since the time of the Expediting Act, until now, AT&T and Microsoft are the only two structural cases. So the paucity of precedent I think actually reinforces the government's view that the act was designed precisely for this kind of case where there is an over-riding national interest in a quick resolution by the highest court in the land, a national interest that's based on the legitimate concerns of the company, the industry, the employees and the shareholders.

So for all those reasons, this seems to me to be precisely the case Congress had in mind.

QUESTION: Are you anticipating that Judge Jackson would hold hearings on expediting?

KLEIN: Certainly there is no requirement that he do so.

KLEIN: And I think the considerations in that situation are essentially straight, legal and discretionary considerations. In other words, why there is a need for expedition here, which I think will be clear from the papers, and how that dovetails with the purposes of the act. I'm quite confident that this is a case that falls within the parameters of the act.

QUESTION: Do you expect to hear from the Supreme Court one way or the other by the end of their term?

KLEIN: This year?

QUESTION: Yes...

(CROSSTALK)

QUESTION: ... end of June, to hear from them whether they will hear it or whether or not they will send it back.

KLEIN: I think that would be unlikely. I think even if the case is certified, then you have what is called a jurisdictional statement that needs to be filed, opposition, or a motion to affirm or dismiss, et cetera, et cetera. That process would go on over the summer. At some point the court would issue its determination whether to grant plenary review or to remand the case to the court of appeals.

QUESTION: Can you expect that in the summer or when they come back in October?

KLEIN: That will depend on the court's timetable and its exercise of its discretion.

QUESTION: Is it a problem, procedurally, based on your knowledge about antitrust cases, that the court held no hearings on the remedy phase, there's no real adversarial cross-examined record of testimony on the remedy, is that normal in an antitrust case? Or is that a hole in this case that could present a problem on appeal?

KLEIN: I don't think it's a hole. I think Judge Jackson explained his reasoning and his opinion yesterday. Second, Pete, I think if you follow the court's 208 page findings of fact, coupled with its 50 pages of legal reasoning, you see that the remedy in a sense grows out of the trilogy of remedial needs that the court identified.

And I think Judge Jackson has explained that given his concerns about Microsoft's unwillingness to follow legal requirements, the need for a structural remedy is appropriate. So I think that it's a sound exercise of discretion, and I believe it's going to be upheld.

QUESTION: Is it typical in antitrust cases, though, that there would be no extensive findings on a remedy?

KLEIN: There have been cases where there have been findings focused on the specifics of a remedy, but it would, again, depend on the circumstances. From the beginning, Judge Jackson made clear he wasn't bifurcating the case into two separate parts. But there have been cases where a court has done that kind of bifurcation and held a second round of hearings, if you will.

QUESTION: One wild card in all of this -- and I'll very quickly get out of the way here -- one wild card in all of this is that we have a change of administrations next January. Are you confident that the case, if necessary, can be carried over into a Bush or a Gore administration, absent key people at the top of the command chain?

KLEIN: I have enormous regard for the commitment of the United States Department of Justice on a nonpartisan basis to engage in law enforcement. And I think history is clearly -- demonstrates that this is not some sort of unsupported view.

The AT&T case was filed in the Nixon administration. It was then aggressively prosecuted by the Carter administration. And it was settled in the light of real political disquiet; that is, the secretary of commerce and the secretary of defense were publicly on record during the Reagan administration opposed to a breakup.

With this Department of Justice, with its commitment to law enforcement, under the leadership of Assistant Attorney General Bill Baxter, went ahead and insisted on a breakup. So my own view is that you'll see continuity of law enforcement because that's what makes the Department of Justice unique.

HEMMER: Joel Klein, assistant attorney general. He tried the case for the Justice Department, was in the courtroom every single day. Some parts of that press briefing at the Justice Department you may need a law degree to follow. However, quite clear in the comments from Klein that he hopes the case is expedited directly to the Supreme Court.

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