mediator

In July 1994 the Department of Justice filed suit against Microsoft Corporation alleging that the company unlawfully maintained a monopoly in the operating system market through anticompetitive terms in its licensing and software developer agreements. The parties entered into a consent decree that avoided a trial on the merits. Three years later the Justice Department brought a civil contempt action against Microsoft for allegedly violating one provision of the decree. This court held that Microsoft's technological bundling of Internet Explorer versions 3.0 and 4.0 with Windows 95 did not violate the consent decree. The court expressly reserved the question whether such bundling might independently violate §§ 1 or 2 of the Sherman Act. On May 18, 1998, shortly before issuance of the Microsoft II decision, the United States and a group of State plaintiffs filed separate complaints that were soon consolidated. The complaints charged Microsoft with four distinct Sherman Act violations arising from its efforts to unseat Netscape Navigator as the leading internet browser. Those violations were unlawful exclusive dealing arrangements in violation of § 1, unlawful tying of Internet Explorer to Windows 95 and Windows 98 in violation of § 1, unlawful maintenance of a monopoly in the PC operating system market in violation of § 2, and unlawful attempted monopolization of the internet browser market in violation of § 2. The States also asserted pendent claims under state antitrust laws. The District Court placed the case on a fast track. It consolidated the preliminary injunction hearing with the trial on the merits pursuant to Fed. R. Civ. P. 65(a)(2). The court limited each side to twelve trial witnesses plus two rebuttal witnesses. It required written direct testimony. The court scheduled trial to begin less than four months after the complaints were filed. Trial commenced on October 19, 1998 after three brief continuances and lasted seventy-six days. In November 1999 the District Court issued its Findings of Fact. The court then established a schedule for briefing on legal conclusions. It invited Professor Lawrence Lessig to participate as amicus curiae. The court referred the case to mediation before Chief Judge Richard A. Posner of the Seventh Circuit. Mediation failed after nearly four months. On April 3, 2000 the District Court issued its Conclusions of Law. The court found Microsoft liable on the § 1 tying claim and the § 2 monopoly maintenance and attempted monopolization claims. It ruled that there was insufficient evidence to support the § 1 exclusive dealing claim. The court also found the state antitrust laws conterminous with the federal claims. Plaintiffs submitted a proposed remedial order within four weeks. The proposal sought both conduct remedies and structural relief splitting Microsoft into an applications company and an operating systems company. The submission was supported by six supplemental declarations and more than fifty new exhibits. The District Court rejected Microsoft's request for further evidentiary proceedings. It held a single hearing on the remedy question. On June 7, 2000 the court issued its Final Judgment adopting plaintiffs' proposal without substantive change. Microsoft filed a notice of appeal within a week. This court ordered en banc review. The District Court certified direct appeal of the federal case to the Supreme Court and stayed the judgment. The Supreme Court declined to hear the appeal and remanded the matter to this court. The Court likewise denied the States' petition for certiorari. Microsoft's appeal challenged the District Court's liability conclusions. The appeal also challenged the remedial order on the grounds that the court failed to afford an evidentiary hearing on disputed facts and that the substantive provisions were flawed. Finally, the appeal challenged the trial judge's ethical conduct. The appeal asserted that the judge engaged in impermissible ex parte contacts by holding secret interviews with members of the media and made inappropriate public comments on the merits of the case while it was pending. Those actions compromised his appearance of impartiality and necessitated disqualification together with vacatur of the Findings of Fact, Conclusions of Law, and Final Judgment.

In 1988 Congress enacted the Indian Gaming Regulatory Act to provide a statutory basis for the operation of gaming by Indian tribes. The Act divides gaming on Indian lands into three classes. Class III gaming includes slot machines, casino games, banking card games, dog racing, and lotteries. Such gaming is lawful only when conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State. The Act imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of such a compact. It authorizes a tribe to bring suit in federal court against a State in order to compel performance of that duty. The Seminole Tribe of Florida requested that the State of Florida enter into negotiations for a compact governing class III gaming on the Tribe's lands. When the State refused to negotiate, the Tribe filed suit in September 1991 in the United States District Court for the Northern District of Florida against the State and its Governor, Lawton Chiles. The Tribe invoked jurisdiction under 25 U.S.C. § 2710(d)(7)(A), as well as 28 U.S.C. §§ 1331 and 1362. It alleged that respondents had refused to enter into any negotiation for inclusion of certain gaming activities in a tribal-state compact, thereby violating the requirement of good faith negotiation contained in § 2710(d)(3). The State moved to dismiss the complaint, arguing that the suit violated the State's sovereign immunity from suit in federal court. The District Court denied the motion. On interlocutory appeal, the Court of Appeals for the Eleventh Circuit reversed. It held that the Eleventh Amendment barred the Tribe's suit against the State and that the doctrine of Ex parte Young did not permit a suit against the Governor to enforce the statutory duty. The Eleventh Circuit remanded with directions to dismiss the suit. The Supreme Court granted certiorari in 1995 to consider whether the Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause and whether the Ex parte Young doctrine permits suits against a State's Governor for such relief.

In 1932, prices received by New York dairy farmers for milk fell substantially below the cost of production amid overproduction and destructive competition. A joint legislative committee investigated the industry through public hearings and expert studies, producing a detailed report that recommended price regulation to stabilize the market and ensure an adequate supply of wholesome milk. The Legislature responded by enacting Chapter 158 of the Laws of 1933, which established a Milk Control Board empowered to fix minimum and maximum wholesale and retail prices for milk. The Board issued an order setting a minimum price of nine cents per quart for milk sold by stores to consumers in cities and villages over one thousand population. Leo Nebbia, the proprietor of a grocery store in Rochester, sold two quarts of milk and a five-cent loaf of bread for eighteen cents on April 19, 1933, thereby charging less than the prescribed minimum. He was prosecuted for violating the order, convicted in the County Court of Monroe County, and sentenced to pay a fine. The conviction was affirmed by the Appellate Division of the Supreme Court and by the Court of Appeals of New York. Nebbia maintained throughout that the statute and the order contravened the equal protection and due process clauses of the Fourteenth Amendment.