Note: Below is the full text of the Dept of Justice's motion appealing
U.S. District Judge Stanley Sporkin's refusal to enter the consent decree
negotiated by Microsoft and the Justice Dept's Antitrust Division. They
argue Judge Sporkin overstepped his authority under the Tunney Act.
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, )
v. ) No. _____
MICROSOFT CORPORATION, )
MOTION FOR EXPEDITED CONSIDERATION AND FOR BRIEFING SCHEDULE
Appellant United States of America hereby moves for expedited
consideration of this appeal and to establish a briefing schedule.
On February 14, 1995, Judge Stanley Sporkin signed an order refusing to
enter the proposed Final Judgment reached in this action by the United
States and Microsoft Corporation ("Microsoft"). In the Order and
accompanying Opinion, Judge Sporkin misconstrued the permissible scope of
his review under the Tunney Act, 15 U.S.C. 16(b)-(h), and thereby
erroneously rejected a consent decree that undoubtedly met the Act's
"public interest" test and that was supported by an affidavit submitted by
Nobel prize winning economist Professor Kenneth J. Arrow.
Moreover, Judge Sporkin's opinion makes clear that, before entering the
decree, he would require the government to reveal to the court all aspects
of its investigation of Microsoft, including the government's reasons for
every decision that it made in performing its Executive Branch functions,
details concerning conduct the government has not at this point
challenged, and the government's plans for further action against the
The district court's decision, unprecedented in the history of the Tunney
Act, radically alters the nature of Tunney Act review of proposed consent
decrees. By so doing, it threatens the ongoing enforcement program of the
Antitrust Division, which relies heavily on achieving consent decrees with
antitrust defendants. For these reasons, expedited review by this Court is
necessary to ensure that the Antitrust Division's enforcement program does
not suffer immediate and irredeemable harm.
A party seeking expedited consideration generally "must demonstrate the
delay will cause irreparable injury and that the decision under review is
subject to substantial challenge"; but "[t]he Court may also expedite
cases . . . in which the public generally [has] an unusual interest in
prompt disposition" and the reasons are "strongly compelling." U.S. Court
of Appeals for the District of Columbia Circuit, Handbook of Practice and
Internal Procedures 40 (1987). Each of these tests is met here.
I. THE DISTRICT COURT'S DECISION IS SQUARELY WRONG
Judge Sporkin's Opinion in this case transforms the Tunney Act into a
blueprint for judicial prosecution of antitrust cases. The Opinion's legal
failings are legion, and it is not the government's purpose to besiege the
Court in this motion with arguments properly reserved for a merits brief.
The district court, however, committed at least three fundamental errors.
First, the court erroneously concluded that the Tunney Act permits a
court to review the history of the government's investigation (including
related investigations), the government's decision not to challenge
particular practices at the time that a consent decree is negotiated, and
its intentions to challenge uncharged conduct in the future. As a
consequence, the court has sent the message to antitrust defendants that
agreeing to a consent decree with the government will open up the entire
range of that party's conduct to judicial scrutiny, whether or not that
conduct is related to the government's concerns as set forth in the
complaint before the court, and whether or not the government has decided
to challenge that conduct at the time that the decree is negotiated. The
Tunney Act, however, never was intended to substitute the court's views of
what case to bring for the government's.
Second, the court departed from settled Tunney Act precedent by failing
to limit its consideration of the antitrust consequences of the decree to
whether the relief sought in the proposed Final Judgment adequately
remedies the violations set forth in the complaint. Indeed, the court
condemned the decree because it did not dissipate market power acquired
through lawful conduct and because it did not address antitrust concerns
in markets not even alleged in the complaint. In the process, the court
flat out rejected, without justification, Professor Arrow's conclusion
that the practices challenged by the government did not materially augment
Microsoft's "installed base" of users, and his considered judgment that,
as a consequence, the decree appropriately remedied the violation alleged
by ensuring that Microsoft does not continue the challenged practices in
Third, Judge Sporkin improperly departed from the principle that he must
defer to the policy and litigation judgments of the Department of Justice,
as well as its expertise, see, e.g., United States v. Western Elec. Co.,
993 F.2d 1572, 1576-77 (D.C. Cir.), cert. denied, 114 S. Ct. 487 (1993),
by impermissibly measuring the proposed Final Judgment against his own
vision of an ideal decree. In so doing, the court failed to pay heed to
Judge Greene's admonition that "[i]f courts acting under the Tunney Act
disapproved proposed consent decrees merely because they did not contain
the exact relief which the court would have imposed after a finding of
liability, defendants would have no incentive to consent to judgment . . .
. The consent decree would thus as a practical matter be eliminated as an
antitrust enforcement tool, despite Congress' directive that it be
preserved." United States v. American Tel. & Tel. Co., 552 F. Supp. 131,
151 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001
II. THE COURT'S DECISION WILL IRREPARABLY HARM THE PUBLIC INTEREST IN
EFFECTIVE ANTITRUST ENFORCEMENT
These errors, and others, threaten the government's ongoing enforcement
program. The consent decree, which conserves the resources both of
enforcement agencies and the courts, is a vital tool of antitrust law
enforcement. Indeed, from August 1993 through September 1994, the
Division filed, on average, approximately two decrees per month. That
figure has risen to almost three per month for the period of October 1994
through January 1995.
That record of success is threatened while Judge Sporkin's ruling stands,
for its inevitable effect is to deter parties from entering into consent
judgments. Both potential defendants and the government will balk at
entering into consent decrees if, as Judge Sporkin has held, to gain court
approval, the government must reveal to the court all aspects of its
If this were not enough, according to Judge Sporkin, a Tunney Act court
may reject a decree both because the government has not brought the case
that the court would like brought or has not required a defendant to
surrender competitive advantages that did not result from the violations
alleged and which are not necessary to excise in order to craft an
effective antitrust remedy for those violations. A defendant confronted
with the choice of litigating against the government or acceding to these
demands clearly would find the former more inviting.
As a consequence, as long as Judge Sporkin's decision stands, scarce
government resources likely will be wasted litigating cases that it
otherwise would settle and settle appropriately, and those resources will
not be available to investigate or prosecute other antitrust offenses.
Obviously, no remedy can repair the resulting harm to the public interest.
Thus, the public has an unusual and compelling interest at stake.
Antitrust enforcement serves the public interest.
* * * In addition to the above, the United States notes that it
perfected its notice of appeal the day after Judge Sporkin's order was
entered. The United States, moreover, is prepared to submit its opening
brief within 21 days from the entry of a briefing order.
In sum, the Tunney Act does not authorize a court to perform the
Executive function of deciding whether the government should have brought
a different antitrust case. Judge Sporkin's contrary ruling raises the
specter that, when an antitrust defendant negotiates a proposed consent
decree with the Division, it will do no more than open up the entire range
of that party's conduct to judicial scrutiny. The court was wrong, its
errors are potentially devastating to efficient enforcement of the law,
and expedited review is essential.
For the foregoing reasons, the motion to grant expedited consideration
and to set a briefing schedule should be granted.
Anne K. Bingaman
Assistant Attorney General
Catherine G. O'Sullivan
Mark S. Popofsky
U.S. Department of Justice
10th & Pennsylvania Ave. N.W.
Washington, D.C. 20530
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