In re Microsoft Corp. Antitrust Litigation, MDL 1332.
| Decision Date | 09 May 2003 |
| Docket Number | No. MDL 1332.,MDL 1332. |
| Citation | 274 F.Supp.2d 741 |
| Parties | In re MICROSOFT CORP. ANTITRUST LITIGATION. |
| Court | U.S. District Court — District of Maryland |
Microsoft has filed a motion requesting that I certify for interlocutory appeal the order I entered on April 4, 2003, granting plaintiffs' Rule 16(c) motions for preclusive effect with respect to certain findings of fact entered by Judge Jackson in United States v. Microsoft.
Certification for an interlocutory appeal is proper where: (1) the order to be appealed involves a controlling question of law; (2) there is substantial ground for difference of opinion on that question of law; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). I find that each of these factors is satisfied here. Accordingly, I will grant the motion in order to give the Fourth Circuit an opportunity to determine whether to consider on interlocutory appeal my ruling that facts found by Judge Jackson that were supportive of (rather than indispensable to) the liability judgment against Microsoft in the government case should be given collateral estoppel effect in the cases encompassed in this MDL proceeding.
My collateral estoppel ruling clearly is not "controlling" of these proceedings in the sense that it is substantively dispositive of their outcome. However, the ruling does control many aspects of the proceedings in substantial respects, particularly the scope of the discovery now underway in the four competitor cases and the scope of the evidence of the trial in the consumer class action (now scheduled to begin in September 2003). I am satisfied that this constitutes a sufficient basis for me to certify my ruling for an interlocutory appeal. See 19 James Wm. Moore et al., Moore's Federal Practice ¶ 203.31[3] (3d ed.2003) (); McNeil v. Aguilos, 820 F.Supp. 77, 79 (S.D.N.Y.1993) (). Nothing is more central to the proper structuring of the private antitrust litigation against Microsoft than the question of whether Microsoft is entitled to relitigate findings found against it in the government case. In my view it would therefore be irresponsible of me not to place these cases in a posture where the Fourth Circuit has the opportunity to review my resolution of that question now if it chooses to do so.1
I am satisfied there is a substantial basis for a difference of opinion on the meaning of the phrase "necessary to the judgment," as it is used in determining collateral estoppel effect. That is particularly true in these proceedings in light of the conclusion reached by Judge Kollar-Kotelly in New York v. Microsoft Corp., 224 F.Supp.2d 76, 138 (D.D.C.2002), that "the vast majority of factual findings entered by ... [Judge Jackson], but not cited by ... [Judge Jackson] as a basis for § 2 liability" were "unconnected to specific liability findings" affirmed by the D.C. Circuit on appeal.2
Providing the Fourth Circuit with the opportunity to determine whether to grant an interlocutory appeal on my collateral estoppel ruling may also materially advance the ultimate termination of the litigation. As I have previously indicated (and as is obvious), my ruling is foundational to the structure within which this MDL litigation will be conducted, defining both the scope of evidence at the trial of the consumer class action and the scope of discovery in the competitor cases. There would be a senseless waste of private and public resources and an unconscionable delay in the final resolution of these proceedings if the Fourth Circuit were not given the opportunity to decide the collateral estoppel issues on an interlocutory appeal and ultimately were to find I had erred in my ruling.
I also consider it relevant that this is an MDL proceeding. The Fourth Circuit has stated in another context that in multi-district litigation "[e]ven accounting for the peculiar facts of each case, it is clearly more efficient to provide for review by one appellate court in one proceeding rather than...
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