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 Hard disk, 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 documents, 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 several 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 the same document, the latest Microsoft director penned one to Microsoft are “much less far with each other towards the reaction to [Borland’s] Turbo C,” another equipment, since the Microsoft try “further away from unit statement.” With regards to the Microsoft file, the fresh Microsoft manager:

set up a great rollout plan for [Microsoft’s affairs] QuickC and you can CS that concerned about minimizing Borland’s first mover advantage of the preannouncing which have an aggressive correspondence venture. 6

This new movie director got peak get on their results remark (a “5-“) to own his “advertising” handling of it “C preannouncement.” seven

The newest Microsoft files state that Steve Ballmer, among Microsoft’s greatest managers, positively said on this strategy, saying that this new “most practical way to stick it” to Borland is actually for example a beneficial “QB3 preannounce to hold off Turbo buyers

Perhaps even more hitting compared to the incongruence between Microsoft’s representations and you may its data is the silence because of the phrendly reviews Agencies, in both its composed distribution plus in the dental presentation to the brand new Judge, from its results on this or other things. The newest Agency have not taken the position (neither, presumably, you’ll they, instead particular reason of files that happen to be submitted to it) one to Microsoft has not engaged in practices eg predatory, preannouncements, or even the seeding out of just what are called “undocumented phone calls” (miracle issues within the an operating system that make an excellent competitor’s software system perform smaller better than simply a competition Microsoft program). 8 Rather, the newest Agency merely have said that it had determined that “don’t action is actually rationalized” within these things — presumably a description that it requires so it Court to take entirely with the faith, as it has provided the latest Legal with practically zero explanation getting its choice.

Most notable of the many, but not, ‘s the absence of any recommendations in almost any of the Department’s articles regarding your adequacy of their recommended fix for Microsoft’s illegal monopolistic carry out

In line with the Department’s very own allegations, away from 1988 so you can 1994 Microsoft made use of some illegal tactics in order to maintain its monopolistic share on the easily expanding systems market — which means that enhanced the size of the strung feet from usage of unlawful plans off no more than 18 mil 9 to around 120 million users. ten Which have approved one to Microsoft for this reason dishonestly received their substantial hung foot, the fresh Institution nonetheless enjoys don’t proffer one basis for concluding that simply prohibiting such means afterwards will answer the fresh new unassailable position one Microsoft has attained as a result of its unjust and illegal means.