AMENDED AGREEMENT FOR INFORMATION SHARING IN JUDGMENT
ENFORCEMENT AND COMPLIANCE ACTIVITIES IN U.S. v. MICROSOFT CORP. AND
NEW YORK, ET AL. v. MICROSOFT CORP. BETWEEN THE DEPARTMENT OF
JUSTICE, ANTITRUST DIVISION, AND THE STATE ATTORNEYS GENERAL OF THE
STATES OF NEW YORK, OHIO, ILLINOIS, KENTUCKY, LOUISIANA, MARYLAND,
NORTH CAROLINA WISCONSIN, MICHIGAN, CALIFORNIA, CONNECTICUT, IOWA,
KANSAS, FLORIDA, MASSACHUSETTS, MINNESOTA, UTAH, AND THE DISTRICT OF
On May 18, 1998, the United States filed a civil antitrust Complaint again Microsoft
alleging that Microsoft restrained competition in violation of Sections 1 and 2 of the Sherman
Act, 15 U.S.C. §§ 1-2 (United States v. Microsoft Corp., Case No. 98-1232). On that same day,
20 States and the District of Columbia (one State later withdrew and another later reached a
separate settlement) filed a similar, although not identical, Complaint (New York, et al. v.
Microsoft Corp., Case No. 98-1233). The District Court consolidated the cases at Microsoft's
On October 19, 1998, the District Court began a 78-day trial that ended on June 24, 1999.
On April 3, 2000, the District Court entered its Conclusions of Law, United States v. Microsoft
Corp., 87 F. Supp.2d 30 (D.D.C 2000), holding Microsoft liable for certain violations of the
Sherman Act and analogous state laws. On June 7, 2000, the District Court issued its Final
Judgment, which imposed a remedy that included a break-up of Microsoft into separate operating
system and applications businesses, along with interim conduct provisions. United States v.
Microsoft Corp., 97 F. Supp. 2d 59 (D.D.C. 2000). Microsoft appealed the District Court's
decision. On June 28, 2001, the Court of Appeals, sitting en banc, unanimously affirmed in part,
reversed in part, and remanded in part the District Court liability judgment. United States v.
Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). After remand to the District Court, the parties in
both cases engaged in extensive court-ordered settlement negotiations.
On November 6, 2001, the United States, nine of the Plaintiff States (New York, Ohio,
Illinois, Kentucky, Louisiana, Maryland, Michigan, North Carolina, and Wisconsin (the "New
York Group")), and Microsoft were able to reach agreement upon a Proposed Final Judgment.
The remaining States (California, Connecticut, Iowa, Kansas, Florida, Minnesota, Massachusetts,
West Virginia, Utah, and the District of Columbia) proceeded to a trial on remedy issues. On
November 1, 2002, the District Court entered a Final Judgment in New York, et al. v. Microsoft
Corp as to the States that elected to proceed to trial ("California Group Judgment"). On
November 12, 2002, the District Court entered identical Final Judgments in both United States v.
Microsoft Corp. and New York, et al v. Microsoft Corp. as to the United States and the New
York Group (collectively, the "Consent Judgment"). The California Group Judgment differs from
the Consent Judgment, particularly with respect to the compliance and enforcement mechanisms.
West Virginia has elected settle its claims with Microsoft. Massachusetts' appeal of the District
Court's entry of the California Group Judgment has ended.
The United States Department of Justice's Antitrust Division (the "Department"), the
New York Group, and the California Group share the goal of maximizing the efficiency and
effectiveness of their compliance and enforcement activities in connection with their respective
Final Judgments so as to achieve coordination of these activities where possible in order to
minimize the burden on the parties and third parties. This Agreement is intended to set forth a
general framework for the sharing of information relating to judgment compliance and
enforcement activities in the United States v. Microsoft Corp. and New York, et al. v. Microsoft
Corp. cases in order to achieve this goal. The groups participating in this Agreement are the
Department, the New York Group, and the States of California, Connecticut, Iowa, Kansas,
Florida, Massachusetts, Minnesota, Utah, and the District of Columbia (the "California Group").(1)
- These coordinated judgment enforcement and compliance activities are generally
nonpublic in nature and will routinely involve materials and information that are subject
to statutes, rules, and policies governing when and how they may be disclosed. For
purposes of this Agreement, "Confidential Information" shall include all information
gathered by any participating group in the course of their compliance and enforcement
activities relating to the Consent Judgment and the California Group Judgment,
- all information and documents provided to any participating group by Microsoft,
whether pursuant to the access provisions in the California Group Judgment or the
Consent Judgment or obtained through compulsory process or voluntary request;
- all information and documents provided to any participating group by any third
party, whether obtained through compulsory process or voluntary request; and
- all information and documents generated by any participating group or group,
including as described in Section III below.
Participants are required to protect Confidential Information and materials from improper
disclosure. Confidentiality obligations continue even if a receiving participating group
subsequently decides to pursue an enforcement avenue different from that chosen by one or more
of the other participating groups.
- Participating groups receiving Confidential Information from another participating group
("the originating participant") will agree to take all appropriate steps to maintain its
- timely notification to the originating participant of any request for Confidential
Information, including requests pursuant to discovery requests, subpoenas or other
compulsory process or public access requests under federal or state statutes;
- a vigorous assertion of all applicable privileges or exemptions from disclosure
claimed by the originating participant;
- moving for intervention in legal proceedings, or providing assistance to the
originating participant in intervening in legal proceedings, if necessary, to assert
such privileges or exemptions; and
- complying with any conditions imposed by an originating participant.
Any participating group or individual participant of such group that becomes aware that
Confidential Information has been disclosed or used in contravention of this Agreement will
promptly advise all other participating groups of the disclosure so that its significance and
implications for further information-sharing can be assessed. Disclosure or use of Confidential
Information in contravention of this Agreement may lead to termination of this Agreement.
- PROCEDURES INVOLVING INFORMATION
OBTAINED FROM THIRD PARTIES AND MICROSOFT
Microsoft and other third parties (individually, a "producing party") may produce
documents or other information to the Department pursuant to a voluntary request, access
provisions of the Consent Judgment, Civil Investigative Demands, or other compulsory process,
and to State Attorneys General pursuant to voluntary request, access provisions of the California
Group Judgment or the Consent Judgment, subpoena, or other compulsory process (such requests
shall hereinafter collectively be referred to as "Investigatory Requests"). In addition, each
participating group may receive complaints concerning Microsoft's compliance with one or more
of the Final Judgments from third parties. To minimize the burden on a producing party or a
complainant and to expedite review of the documents or other information, a producing party
may wish to facilitate coordination between the participating groups.
Disclosure within each participating group of materials obtained pursuant to this
paragraph shall be limited solely to those persons working on Microsoft judgment compliance
and enforcement activities and any consultants or experts retained by any such group. Each
participating group may also use such materials for any other valid law enforcement purpose.
- Each participating group will, with the consent of a producing party, agree that certain
otherwise Confidential Information may be provided to the other participating groups.
- identify each participating group with whom it agrees the Confidential
Informaiton may be shared; and
- submit a letter to each participating group that waives the confidentiality
provisions under applicable statues and regulations or other agreements or orders
to allow communications between the participating groups.(2)
- A producing party may provide Confidential Information produced pursuant to an
Investigatory Request directly to each participating group as to which these requirements
have been satisfied. In addition, each participating group agrees to provide to the other
participating groups who have been authorized by the producing party to have access
copies of the Investigatory Request from which the production results. All information
shared between participating groups need only be provided to a single point of contact in
the other participating groups.
- Complaints received by any participating group relating to Microsoft's compliance with
any of the Final Judgment may also be shared with another participating group, provided
that the complainant consents to disclosure of the complaint to that participating group. In
order to expedite the sharing of complaints among the participating groups, each
participating group agrees to:
- within three business days of receipt of the complaint, contact the complainant to
inquire whether the complainant will consent to disclosure to the other
participating groups. The recipient of the complaint shall not be required to
contact the complainant pursuant to this subparagraph where it is apparent from
the contents of the complaint that the complainant has already disclosed the
complaint to all of the other participating groups. In addition, if the complainant
does not include correct contact information, the participating party receiving the
complaint will use best efforts to contact the complainant to obtain consent to
disclose the complaint;
- maintain a log of communications with complainants relating to consent that
records (a) whether consent was obtained orally or in writing; (b) the dates that
consent was requested and either obtained or declined; (c) if consent is sought
orally, the identity of the person who provided or declined to provide consent; and
(d) if consent is obtained, the identity of the participating group or groups covered
by the consent; and
- disclose the complaint as authorized by the complainant within two business days
of receipt of such authorization.
- In order to facilitate the expeditious sharing of complaints, each participating group may
require complainants to submit with their complaints a form that identifies the
participating groups as to which the complainant authorizes disclosure of its complaint.
Where a participating group uses such a form, the portion of the form relating to consent
to disclosure shall be in the following form:
[Complainant] consents to disclosure of this complaint to (check
each applicable box):
[ ] the United States Department of Justice's Antitrust Division
[ ] the States of California, Connecticut, Iowa, Kansas, Florida,
Massachusetts, Minnesota, Utah and the District of Columbia
[ ] the States of New York, Ohio, Illinois, Kentucky, Louisiana,
Maryland, Michigan, North Carolina, and Wisconsin
[ ] all of the above.
Where such a form is used by a participating group and completed by a complainant, the
participating group need take no other action relating to obtaining consent and agrees to disclose
the complaint as authorized by the complainant within two days of receipt of the complaint and
the applicable authorization.
- The participating parties acknowledge that it may be necessary to modify the process
described in this section for obtaining third party consent and sharing complaints and
agree to do so.
- PROCEDURES INVOLVING INFORMATION
GENERATED BY A PARTICIPATING GROUP OR GROUPS
- Subject to the terms of this Agreement, the following types of Confidential Information
generated by a participating group or groups may be shared:
- Recommendations received from the Technical Committee by the Department and
the New York Group or from the Microsoft Compliance Office, as that term is
defined in the California Group Judgment, by the California Group concerning
potential violations by Microsoft of any applicable Final Judgment.
- Oral analyses of complaints received by the Department, the New York Group
and/or the California Group.
- Investigatory Requests from any participating group to Microsoft and requests
from any participating group to Microsoft that Microsoft undertake a particular
action in connection with its compliance with the Consent Judgment or the
California Group Judgment.
- Investigatory Requests from any participating group to a third party.
- No participating group shall be obligated to share information under this paragraph if
such sharing interferes with the effective or efficient enforcement of either the Consent
Judgment or the California Group Judgment. No information provided pursuant to this
paragraph may be used by any participating group other than the group generating the
information in connection with any enforcement action, whether formal or informal,
against Microsoft or any other person.
- CONDUCT OF JUDGMENT ENFORCEMENT AND COMPLIANCE ACTIVITIES
The following is intended to set forth suggested guidelines that may be followed to
coordinate judgment enforcement and compliance activities by State Attorneys General and the
Department. All applicable investigatory, work product, or other privileges shall apply to any
material exchanged and the exchange of any material shall not be deemed a waiver of any such
privilege, including the provisions of any statutes, rules, and policies governing when and how
Confidential Information may be disclosed.
- COORDINATION OF JUDGMENT ENFORCEMENT
AND COMPLIANCE ACTIVITIES
Coordination between participating groups may include:
- identifying lawyers and other legal and economic team members working on the
case, and identification of contact points for each participating group, through
which all coordination issues shall be raised and all Confidential Information
sharing shall occur;
- scheduling and conducting joint interviews, with the consent of the person to be
interviewed, provided that the Department, the New York Group and the
California Group each agree to limit the number of persons conducting the
interview (although there shall be no limit on the number of participants);
- providing documents and other information as described in Sections II and III
- contact points for each participating group shall participate in a conference call
approximately once every other week (or more frequently, as circumstances
require) to discuss ongoing enforcement and compliance activities, including
receipt of complaints, coordinating the scheduling of interviews, and, if
appropriate, discussions with Microsoft.
- ENFORCEMENT ACTIONS
- Each participating group agrees that it will take no enforcement action under its
respective Final Judgment without providing each other participating group 15
calendar days' written notice of its intention to take such action. Such written
notice shall include a detailed explanation of the contemplated enforcement action
and the basis or bases for it. The time for providing notice pursuant to this
paragraph shall not commence until the relevant participating group has received
authorization from its decision makers to proceed with such an enforcement
- Each participating group shall be permitted to take an action relating to its
respective Final Judgment with less than 15 calender days' written notice, where
providing such notice interferes with a valid law enforcement purpose. Where a
participating group determines that the provision of 15 calender days' written
notice pursuant to this paragraph interferes with a valid law enforcement purpose,
such participating group shall in any event immediately notify each other
participating group of the necessary action and describe the nature of the action
and the valid law enforcement purpose that requires departure from this
- CONSULTANTS AND EXPERTS
Each participating group shall be responsible for hiring and working with its own external
consultants and experts. No participating group shall be required to disclose the identity of any
such consultant or expert or to share the work on any such consultant or expert with any other
participating group. Participating groups may consider, on a case-by-case basis, whether to share
the costs and responsibilities associated with hiring and working with external consultants or
- TECHNICAL COMMITTEE AND MICROSOFT COMPLIANCE OFFICER
Absent the consent of the Department and the New York Group, the California Group
shall have no direct access to the Technical Committee, as that term is defined in the Consent
Judgment. The participating groups may develop a mechanism through which the Technical
Committee and the Microsoft Compliance Officer, as that term is defined in the California Group
Judgment, are informed of each other's general activities.
- STATEMENTS TO THE PRESS
The participating groups plan on coordinating the release of information to the news
media. The participating groups will reach an understanding regarding the timing of an
procedures for notifying the other participating groups prior to the release of any information to
FOR THE STATES OF NEW YORK,
OHIO, ILLINOIS, KENTUCKY,
LOUISIANA, MARYLAND, MICHIGAN
NORTH CAROLINA, AND WISCONSIN
JAY L. HIMES
Chief, Antitrust Bureau
Assistant Attorney General, State of New York
New York, New York 10271
FOR THE STATES OF CALIFORNIA,
CONNECTICUT, IOWA, KANSAS,
FLORIDA, MASSACHUSETTS, MINNESOTA,
UTAH, AND THE DISTRICT OF COLUMBIA
LAYNE M. LINDEBAK
Assistant Attorney General
Iowa Department of Justice
Hoover Office Building
1305 East Walnut Street
Des Moines, Iowa 50319
Phone: 515 281-7054
Fax: 515 281-4902
FOR THE UNITED STATES
DEPARTMENT OF JUSTICE'S
RENATA B. HESSE
Chief, Networks and Technology Section
U.S. Department of Justice
600 E Street, N.W., Suite 9500
Washington, D.C. 20530
1. For purposes of this Agreement, the California Group does not include West Virginia.
2. Examples of such a letter are annexed as Exhibit 1.
United States v. Microsoft Corp., Civil Action No. 98-1232 (CKK) (D.D.C.)
AUTHORIZATION TO EXCHANGE DOCUMENTS AND OTHER INFORMATION
New York v. Microsoft Corp., Civil Action No. 98-1233 (CKK) (D.D.C.)
| Re: || ______________________________|
| Dated: || ______________________________|
| To: || ______________________________|
| Issued by:|| ______________________________
(the "Confidential Request")
This confirms that, with respect to the undersigned's response to this Confidential
Request, as well as to any communications relating to this Request, the undersigned waives any
applicable confidentiality provision in the Antitrust Civil Process Act, 15 U.S.C. §§ 1311 et seq.,
or in any Relevant State Statutes,1 and any other applicable confidentiality provisions to the
extent necessary to allow the Antitrust Division of the United States Department of Justice and
each and all of the Attorneys General of the Plaintiff States2(2) to share between and among each
other, as well as with, any documents, information, or analyses provided.
Relevant State Statutes
Cal. Gov't Code §§ 6250 et seq. (California Public Records Act), and § 11180; Cal. Bus. & Prof.
Code §§ 16700 et seq.;
Conn. Gen. Stat. §§ 1-200 et seq., §§ 35-24 et seq., and § 35-42;
D.C. Code Ann. §§ 2-531 et seq. (Freedom of Information), §§ 28-4501 et seq., and § 28- 4505;
Fla. Stat. §§ 501.2065 and 542.28;
5 Ill. Comp. Stat. 140; 740 Ill. Comp. Stat. 10/1 et seq. ;
Iowa Code §§ 553.1 et seq., and §553.9;
Kan. Stat. Ann. §§ 45-215 et seq., and §§ 50-623 et seq.;
Ky. Rev. Stat. Ann. § 61.878(1)(c), §§ 367.170 et seq., and § 367.240;
La. Rev. Stat. Ann. §§ 51:122 et seq., and § 51:143;
Mass. Gen. Laws (M.G.L.) ch.93 §§ 1 et seq., M.G.L. ch.93A §§ 1 et seq., and M.G.L. ch.66
§§ 1 et seq.
Md. Code Ann., Com. Law §§ 11-201 et seq., § 11-205, and § 11-208; Md. State Gov't Code
Ann.§§ 10-611 et seq.;
Mich. Comp. Laws §§ 445.771 et seq., and § 445.776;
Minn. Stat. §§ 8.31, 13.03, 13.37, 13.39, 13.393 and 13.65, and §§ 325D.49 et seq.;
N.Y. Gen. Bus. Law §§ 340 et seq.; N.Y. Pub Officers L. §§ 84-87;
N.C. Gen. Stat. §§ 75-1 et seq., and § 132-1.2;
Ohio Rev. Code Ann. §§ 149 et seq., §§ 1331.01 et seq., and § 1331.16;
Utah Code Ann. §§ 76-10-911 et seq., § 76-10-916, and § 76-10-917;
Wis. Stat. §§ 19.35, 19.36, 19.39, §§ 133.01 et seq., and § 165.065.
1. The term "Relevant State Statutes" means each and every statute set forth in the schedule
attached to this letter, and all rules or regulations promulgated under any such statute relating to
the confidentiality of documents or information, in whatever form.
2. The "Plaintiff States" consist of New York, Ohio, Kentucky, Illinois, Louisiana,
Maryland, North Carolina, Wisconsin, Michigan, California, Connecticut, Iowa, Kansas, Florida,
Massachusetts, Minnesota, Utah, and the District of Columbia.