From the Dark Side--Justice Filed Responses to Antitrust Settlement Public Comments

and they are located on DOJ's web site. The long document addresses our (MTC-00004616) major points:

1. Tying (para. 22): "...banning contractual tying, however, are remedies that are not warranted on the existing record. This case was not a monopoly leveraging case, and the Court of Appeals reversed the District Court's judgment as it related to attempted monopolization of the browser market, and vacated and remanded the District Court's judgment on the tying claim." We point out that it was remanded and our complaint was that the Justice Department decided not to rehear it by settling, not the courts. DOJ sidestepped the issue.

2. Lack of Punishment (para. 27): "...the goals of the remedy in this case are to enjoin the unlawful conduct, prevent its recurrence, and restore competitive conditions in the market affected by Microsoft's unlawful conduct..... The RPFJ accomplishes these goals. By contrast, punishment is not a valid goal." We disagreed with the narrow scope of the remedy's goals and decried the lack of punishment, not that it should be the sole or even main goal. Again, DOJ sidestepped the issue.

3. Low Enforceability (para. 376 et seq.): "Numerous comments criticize various aspects of the compliance and enforcement procedures set forth in Section IV of the RPFJ. Many of these comments take issue with the composition and duties of the Technical Committee ("TC") (RPFJ § IV.B) and the supplemental dispute resolution provisions (RPFJ § IV.D), some suggesting that the enforcement scheme should be based on an entirely different, more draconian, model. In several cases, these comments misunderstand the purposes underlying the RPFJ's supplemental enforcement mechanisms. In others, they imply that the RPFJ somehow dilutes the United States' and the Court's traditional judgment construction and enforcement powers, or that Microsoft arguably has an undue amount of control over the process.(358) These allegations are meritless." Of course, we think that our concerns are not meritless, especially since the first settlement proved unenforceable. Reading the Justice Department's entire set of comments on enforceability do not give us much comfort.

The revised proposed settlement is posted here. It has been altered for clarity of intent only. The master list of all 30,000 comments is posted here. The comments are available in both searchable text versions and imaged PDF versions.

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