This Court has been asked to endorse the proposed Consent Decree between the Department of Justice and Microsoft without being provided with any of the information upon which a meaningful determination under the Tunney Act could be based. 59 Fed. Reg. 59,426, 59,427 (Nov. 17, 1994). At the September 29, 1994 hearing on this matter, the Court referred to this issue, noting that in the book Disk drive, 2 Microsoft was said “time after time” to predatorially preannounce products “with the intent [to] freeze other people from coming out with their product.” Tr. of Status Call, Sept. 29, 1994, at -22. The following colloquy then took place between Microsoft’s counsel and the Court:
Microsoft’s representations, however, are belied by Microsoft’s very own data, produced to the Government during the course of its investigation. (Examples of such documents are attached hereto at Appendix Exs. 21 and 22.) 3 Thus, for example, a Microsoft manager was involved in spearheading a couple of product preannouncements during one six-month period. In one instance, the manager wrote that in response to “Borland’s announce[ment of] TurboBASIC at the November Comdex,” he simultaneously worked “to develop a [Microsoft] spec[ification] that could beat TurboB,” while also formulating a promotional campaign “that could hold our position until [QB3, the Microsoft product] hit the market.” 4 He stated that he “reviewed [this] promotion plan with Bill G. before implementation.” Id. ” 5
In identical file, this new Microsoft manager composed one Microsoft was “less far together towards response to [Borland’s] Turbo C,” a second device, because Microsoft are “further off unit statement.” Depending on the Microsoft file, the fresh Microsoft director:
put up a rollout plan for [Microsoft’s products] QuickC and you will CS one worried about minimizing Borland’s first mover advantage by the preannouncing which have a hostile correspondence campaign. 6
This new manager received peak get on the his abilities opinion (a beneficial “5-“) for their “advertising” management of so it “C preannouncement.” 7
This new Microsoft documents declare that Steve Ballmer, one of Microsoft’s top professionals, favorably mentioned on this subject method, saying that the newest “best way spotted sign in to stick they” so you can Borland try including a great “QB3 preannounce to hang out of Turbo buyers
Perhaps even alot more hitting compared to incongruence anywhere between Microsoft’s representations and you will its data files ‘s the quiet because of the Department, in their written submissions along with its dental demonstration to help you the newest Court, out of the results on this subject or other matters. The brand new Company has not taken the career (nor, presumably, could it, as opposed to particular cause of one’s files that have been published to it) you to Microsoft hasn’t involved with methods including predatory, preannouncements, or perhaps the seeding out-of just what are named “undocumented phone calls” (magic points within the an os that produce a competitor’s apps system operate reduced well than just a competitor Microsoft system). 8 Instead, the fresh Agency only provides said that it had determined that “no longer action was justified” in these things — allegedly a reason it requires that it Legal to take totally to the faith, whilst has provided the Legal having practically zero cause for the choice.
Most remarkable of the many, yet not, is the absence of people pointers in any of your own Department’s articles regarding the adequacy of the advised treatment for Microsoft’s illegal monopolistic run
In line with the Department’s individual accusations, out-of 1988 in order to 1994 Microsoft put a number of illegal methods to keep their monopolistic express in the easily growing operating systems business — for example increased how big the hung foot from usage of illegal ideas off no more than 18 million 9 so you’re able to everything 120 million users. ten With acknowledged you to definitely Microsoft ergo illegally obtained the massive strung legs, brand new Agencies still features failed to proffer people reason behind finishing that simply prohibiting these methods afterwards usually answer the latest unassailable standing one Microsoft enjoys gained following its unfair and you can illegal methods.