UPDATE
Appellate Briefs
VOLUME 4 / NUMBER 5
SEPTEMBER / OCTOBER 2000
Microsoft Word:
Supreme Court Says No to Expedited Appeal
by Ronald F. Kehoe
Microsoft Corporation has long been a computer
software innovator, but the Supreme Court’s decision
not to expedite the corporation’s appeal from Judge
Thomas Penfield Jackson’s Sherman Act judgments
means that the company has gladly missed the
opportunity to become an antitrust appellate innovator
too. In remanding the appeal in Microsoft Corporation
v. United States, 530 U.S. ___ (September 26, 2000), to
the United States Court of Appeals for the District of
Columbia Circuit without explanation, the Supreme Court
passed up an opportunity to make new antitrust
procedural law by interpreting the standard for a direct
Supreme Court appeal under the Expediting Act, 15
U.S.C. § 29(b).
Microsoft and the Department of Justice had extensively
briefed the question because both assumed that the
Court of Appeals would be more hospitable to Microsoft
than the Supreme Court and because, in a rapidly
changing industry, delay could moot some of the district
court’s findings.
consideration of antitrust appeals only in cases where
the United States seeks equitable relief and the
determination is made at two levels that an expedited
review would be “of general public importance in the
administration of justice.” The district judge makes the
first determination and the Supreme Court makes the
second. Judge Jackson certified the Microsoft appeal
as meeting this standard, but the Supreme Court did not
share his view.
Since 1974, a direct appeal has been authorized by a
district court only twice, in Maryland v. United States,
460 U.S. 1001 (1983), and California v. United States,
464 U.S. 1013 (1983), both of which involved consent
orders for the divestiture of AT&T. The Supreme Court
accepted both appeals, rubber stamped the consent
orders without issuing opinions, and provided no
interpretation of the “general public importance”
standard. So, we are still left to guess what is meant by
that statutory phrase.
The legislative history suggests that Congress was
thinking more of the immediate impact of the case on the
economic welfare of the nation, rather than on the
importance of the legal issues presented. See H.R. Rep.
No. 1463, 93d Cong., 2d Sess. 14 (1974); see also S. Rep.
No. 298, 93d Cong., 1st Sess. 4 (1974); 119 Cong. Rec.
24599 (1973). Dissenting from the remand order in
Microsoft Corp. v. United States, Justice Stephen Breyer
said that the Court should take the case because it affects
an important sector of the economy that is characterized
by rapid technological change, and a speedy decision
would “further the economic development of that sector”
by helping to create legal certainty. But the eight Justices
Congress responded in 1974 by amending the
in the majority were silent, and the Court’s chance to
Expediting Act with the Antitrust Procedures and
elaborate the “general public importance” standard was
Penalties Act, 88 Stat. 1706. All antitrust appeals now
foregone, perhaps for another generation or longer.
go to the courts of appeals, subject to possible
Ronald F. Kehoe practices with K&L’s Boston office
discretionary review by the Supreme Court on certiorari.
and can be reached at rkehoe@kl.com.
Section 29(b) preserves immediate Supreme Court
Under the Expediting Act of 1903, the Supreme Court
had direct, exclusive jurisdiction of all appeals in civil
antitrust cases where the United States sought equitable
relief. The congressional purpose was to assure a
speedy and uniform interpretation of the then-infant
antitrust laws. See Tidewater Oil Co. v. United States,
409 U.S. 151, 155 (1972). But as the caseload grew,
observers and the Court itself increasingly criticized
the direct review procedure as unduly burdensome for
the Court. See United States v. Singer Mfg. Co., 374
U.S. 174, 175 n.1 (1963).
Kirkpatrick & Lockhart LLP
NOTA BENE
While it is true that certain post-judgment activity in the trial court may toll the
deadline for filing a notice of appeal, counsel must be aware of the limits of the district
court’s ability to extend the time to appeal. Consider Mendes Junior Int’l Co. v. Banco
do Brasil, S.A., 215 F.3d 306 (2d Cir. 2000). The district court dismissed the plaintiff’s
complaint on forum non conveniens grounds. The plaintiff filed a motion for
reconsideration and the defendant filed a fee petition. Two months later, the plaintiff
asked the district judge to enter an order (what some courts have called a “Rule 58/54/
59 order”) that the fee petition be treated as a timely motion to amend the judgment.
The district court entered such an order, which usually tolls the time for the plaintiff
to file a notice of appeal until 30 days after the district court decides the fee issue.
However, when the plaintiff filed its notice of appeal within 30 days of that decision,
the Second Circuit held that it did not have jurisdiction because the plaintiff’s motion
to reconsider was untimely and, thus, did not toll the appeal deadline. The court held
that a Rule 58/54/59 order cannot “revive” a lapsed time for appeal and, therefore,
dismissed the appeal.
ON THE DOCKET
In Nicholas, et al. v. Saul Stone & Company LLC, et al., No. 98-5390, the Third Circuit
affirmed the District Court of New Jersey’s dismissal of plaintiffs’ action, in relevant
part, for failure to state a claim upon which relief could be granted. Plaintiffs’ putative
class action alleged that ten Futures Commission Merchants (“FCM”) acted improperly
in clearing trades for the accounts of two individuals and certain of their corporations,
which, unbeknownst to the FCMs, were engaged in a Ponzi scheme. On appeal, the
issue of note was plaintiffs’ claim that the FCMs had aided and abetted violations of
the Commodity Exchange Act (“CEA”), 7 U.S.C. §§ 1a, et seq. The Third Circuit held
that plaintiffs “have not alleged that the defendant FCMs had the required knowledge
and guilty intent” and that based on these allegations, “at most, the FCMs had acted
recklessly.” In affirming the lower court, the Circuit Court determined that plaintiffs’
allegations were a “far cry” from what is necessary to bring an action for aiding and
abetting a violation of the CEA. Warren Colodner and Michael Stern of K&L’s New
York office represented Prudential Securities Incorporated, one of the named defendants.
In Nile v. Nile, 432 Mass. 390 (2000), the Supreme Judicial Court of Massachusetts,
affirmed the grant of summary judgment for the plaintiff in an action seeking to enforce
his deceased father’s contract to make a will and to impose a constructive trust over the
father’s $4.7 million New Hampshire trust estate. The court’s opinion clarified and
extended Massachusetts case law in several important areas besides the enforcement
of a contract to make a will, including the assertion of long-arm jurisdiction over
nonresident trustees, the scope of the contractually implied covenant of good faith and
fair dealing, and the appropriate use of a constructive trust as an equitable remedy.
Ronald Kehoe of K&L’s Boston office represented the plaintiff in the trial court and
on appeal.
The Third Circuit decided in United States v. Thomas, 221 F.3d 430 (3d Cir. 2000), that
amendments of federal habeas petitions may relate back to the date of the original filing
for statute-of-limitations purposes. The court also became the first federal court to note
the inconsistency between the practice of many courts to require factual specificity in
habeas filings and a form routinely distributed by district court clerks that instructs the
inmates to state their claims “concisely” and “briefly.” The Third Circuit reversed and,
in a published decision, suggested that district courts revise their standard forms. Robert
Byer of K&L’s Pittsburgh office and David Fine of K&L’s Harrisburg office represented
the appellant pro bono at the request of the appeals court.
This Update is a bi-monthly
publication of the Appellate Practice
Group of Kirkpatrick & Lockhart LLP.
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Andrew H. Cline
CONTRIBUTING EDITOR
David R. Fine
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