Thursday, April 03, 2003

First person account of oral argument before Fourth Circuit in Microsoft case

At this link you can read a description of oral argument in the Microsoft injunction case, before a panel of Judge Emory Widener, Judge Paul Niemeyer, and Judge Roger Gregory. The author writes that Judge Niemeyer asked most of the questions and made no secret of his views of the case: "Although Judge Widener presided over today’s hearing, for all intents and purposes this was Judge Niemeyer’s show. Aside from two brief interjections from Judge Gregory, Judge Niemeyer monopolized—no pun intended—this morning’s oral argument. He was particularly belligerent towards Sun’s counsel, and by the end of the one-hour hearing, I got the impression that Judge Niemeyer planned to catch a train to Baltimore and physically beat Judge Motz with a shovel for issuing his injunction in the first place."

Reuters published this account of the same argument, noting that Judge Niemeyer, "who dominated questioning during an hour of presentations from both sides, also criticized the legal basis of the injunction issued late last year by U.S. District Judge J. Frederick Motz in Baltimore."

This eWeek article described the argument as "Harding vs. Kerrigan revisited," quoting this exchange:

Judge Gregory: "Your argument is Microsoft is being found guilty of discharging a firearm in the direction of human beings, but it's a slow-moving bullet and now we have to see where it lands?"

Counsel for Sun: "Yes, and Microsoft was shooting at Sun's knee. What Microsoft did is what Tonya Harding did."

Judge Niemeyer: "But what you did is asked for a remedy to fix her elbow and not her knee."

David Tulchin of Sullivan & Cromwell argued for Microsoft, Lloyd Day from Cupertino argued for Sun.

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