Massachusetts v. Microsoft Corp., 02-7155.
| Decision Date | 30 June 2004 |
| Docket Number | No. 02-7155.,No. 03-5030.,02-7155.,03-5030. |
| Citation | 373 F.3d 1199 |
| Parties | Commonwealth of MASSACHUSETTS, ex rel., Appellant, v. MICROSOFT CORPORATION, Appellee. United States of America, Appellee, v. Microsoft Corporation, et al., Appellees. The Computer and Communications Industry Association and The Software and Information Industry Association, Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Nos. 98cv01233, 98cv01232).
Steven R. Kuney argued the cause for appellant Commonwealth of Massachusetts, ex rel., in No. 02-7155. With him on the briefs were Brendan V. Sullivan, Jr., Thomas F. Reilly, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, and Glenn S. Kaplan, Assistant Attorney General. John E. Schmidtlein and Nicholas J. Boyle entered appearances.
Robert H. Bork argued the cause for appellants The Computer and Communications Industry Association, et al., in No. 03-5030. With him on the briefs were Kenneth W. Starr, Glenn B. Manishin, Stephanie A. Joyce, Mark L. Kovner, and Elizabeth S. Petrela.
Kenneth W. Starr, Robert H. Bork, David M. Gossett, Elizabeth S. Petrela, Donald M. Falk, and Mitchell S. Pettit were on the brief of amici curiae The Computer and Communications Industry Association, et al., in support of appellant in No. 02-7155. Glenn B. Manishin entered an appearance.
Deborah P. Majoras, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee United States of America in No. 03-5030. With her on the brief were R. Hewitt Pate, Assistant Attorney General, and Catherine G. O'Sullivan and David Seidman, Attorneys.
Michael Lacovara and Steven L. Holley argued the causes for appellees. With them on the briefs were John L. Warden, Richard J. Urowsky, Richard C. Pepperman II, Bradley P. Smith, Thomas W. Burt, David A. Heiner, Jr., Charles F. Rule, and Dan K. Webb.
Before: GINSBURG, Chief Judge, and EDWARDS, SENTELLE, RANDOLPH, ROGERS, and TATEL, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
I. Background .......................................................1204
II. Commonwealth of Massachusetts v. Microsoft, No. 02-7155 ........1207
A. Remedial Proposals ...........................................1207
1. Commingling ..............................................1207
2. Java deception ...........................................1213
3. Forward-looking provisions ...............................1215
a. Disclosure of APIs ...................................1216
b. Disclosure of communications protocols ...............1222
4. Web Services .............................................1225
5. Market Development Programs ..............................1226
6. Open Source Internet Explorer ............................1227
7. Java must-carry ..........................................1231
B. Cross-cutting Objections .....................................1232
1. "Fruits" .................................................1232
2. Presumption ..............................................1233
III. CCIA and SIIA v. United States & Microsoft, No. 03-5030 .........1234
A. Intervention .................................................1234
B. The Public Interest Finding ..................................1236
1. Issues overlapping Massachusetts' case ...................1237
a. Commingling ..........................................1238
b. Java .................................................1239
c. Disclosure of APIs ...................................1240
d. Adequacy of definitions ..............................1241
e. "Fruits" .............................................1242
2. Non-overlapping issues ...................................1243
a. Enforcement ..........................................1243
b. User interface .......................................1245
c. Anti-retaliation .....................................1245
C. Procedural Claims ............................................1246
1. Government's disclosure ..................................1247
2. Microsoft's disclosure ...................................1249
IV. Conclusion .......................................................1250
* * *
In United States v. Microsoft Corp., 253 F.3d 34 (D.C.Cir.2001) (Microsoft III), we affirmed in part and reversed in part the judgment of the district court holding Microsoft had violated §§ 1 and 2 of the Sherman Antitrust Act, vacated the associated remedial order, and directed the district court, on the basis of further proceedings, to devise a remedy "tailored to fit the wrong creating the occasion" therefor, id. at 107, 118-19. On remand, the United States and certain of the plaintiff states entered into a settlement agreement with Microsoft. Pursuant to the Antitrust Procedures and Penalties (Tunney) Act, 15 U.S.C. §§ 16(b)-(h), the district court held the parties' proposed consent decree, as amended to allow the court to act sua sponte to enforce the decree, was in "the public interest." Meanwhile, the Commonwealth of Massachusetts and several other plaintiff states refused to settle with Microsoft and instead litigated to judgment a separate remedial decree. The judgment entered by the district court in their case closely parallels the consent decree negotiated by the United States.
Massachusetts alone appeals the district court's entry of that decree. It argues the district court abused its discretion in adopting several provisions Microsoft proposed while rejecting several others Massachusetts and the other litigating states proposed. Massachusetts also challenges a number of the district court's findings of fact. Based upon the record before us in Microsoft III and the record of the remedial proceedings following remand, we affirm the district court's remedial decree in its entirety.
The Computer and Communications Industry Association (CCIA) and the Software and Information Industry Association (SIIA) separately appeal the district court's denial of their motion, following the district court's approval of the consent decree between the United States and Microsoft, to intervene in the case for the purpose of appealing the district court's public-interest determination. They argue the factors the district court was to consider in determining whether to allow them to intervene weighed in their favor. We agree and reverse the district court's denial of their motion to intervene for the purpose of appealing that court's public-interest determination.
CCIA and SIIA make various arguments — some overlapping those raised by Massachusetts — that the consent decree between the United States and Microsoft is not in the public interest. They also argue the parties did not satisfy the procedural requirements of the Tunney Act. For these reasons, they seek vacatur of the district court's order approving the consent decree and a remand for entry of "a proper remedy." We find no merit in any of CCIA's and SIIA's objections, substantive or procedural. We therefore uphold the district court's approval of the consent decree as being in the public interest.
The facts underlying the present appeals have been recounted several times. See New York v. Microsoft Corp., 224 F.Supp.2d 76 (D.D.C.2002) (States' Remedy); United States v. Microsoft Corp., 231 F.Supp.2d 144 (D.D.C.2002) (U.S. Consent Decree); see also Microsoft III. We therefore limit our discussion of the facts and of the proceedings to a brief review of events prior to our remand in 2001 and a more detailed account of what has transpired since then.
In May 1998 the United States filed a complaint against Microsoft alleging violations of federal antitrust laws. At the same time, a number of states and the District of Columbia filed a complaint against Microsoft alleging violations of both federal and state antitrust laws. The two complaints, which the district court consolidated, sought various forms of relief, including an injunction against certain of Microsoft's business practices.
After a lengthy bench trial the district court entered findings of fact, United States v. Microsoft Corp., 84 F.Supp.2d 9 (D.D.C.1999) (Findings of Fact), and held Microsoft had violated §§ 1 and 2 of the Sherman Act by illegally maintaining its monopoly in the market for "Intel-compatible PC operating systems," by attempting to monopolize the browser market, and by tying its Windows operating system to its Internet Explorer (IE) browser. United States v. Microsoft Corp., 87 F.Supp.2d 30 (D.D.C.2000) (Conclusions of Law). The district court also held Microsoft violated the antitrust laws of the several states. Id. at 56. Based upon its findings of fact and conclusions of law, the district court decreed that Microsoft would be split into two separate companies, one selling operating systems and one selling program applications. See United States v. Microsoft Corp., 97 F.Supp.2d 59 (D.D.C.2000) (Remedy I). Microsoft appealed the decisions of the district court, alleging several legal and factual errors.
We upheld the district court's ruling that Microsoft violated § 2 of the Sherman Act by the ways in which it maintained its monopoly, but we reversed the district court's finding of liability for attempted monopolization, and we remanded the tying claim to the district court to apply the rule of reason rather than the rule of per se illegality. See Microsoft III. We also vacated the district court's remedial decree, for three reasons: "First, [...
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