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EXHIBIT 11

TO THE COMMENTS

OF RELPROMAX ANTITRUST INC.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA.,    

                       Plaintiff,

                  v.

MICROSOFT CORPORATION,

                        Defendant.



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Civil Action No. 98-1232 (CKK)
STATE OF NEW YORK, ex rel.
Attorney General ELIOT SPITZER et al.,    

                       Plaintiffs,

                  v.

MICROSOFT CORPORATION,

                        Defendant.

 


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Civil Action No. 98-1233 (CKK)

Next Court Deadline:
March 4, 2002
Pre-hearing Conference



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION OF RELPROMAX ANTITRUST INC. FOR LIMITED
PARTICIPATION AS AN AMICUS CURIAE AND FOR AN
EXTENSION OF TIME ON THE GROUNDS THAT THE
UNITED STATES HAS NOT PROVIDED A COMPETITIVE
IMPACT STATEMENT IN COMPLIANCE WITH
THE REQUIREMENTS OF 15 U.S.C. 16(b)

Plaintiff, the United States of America, has not complied with the disclosure requirements of the Tunney Act, specifically 15 U.S.C. 16(b), or this Court's Order dated November 8,2001.

Pursuant to 15 U.S.C. 16(b), anyone has the statutory right to comment on the Revised Proposed Final Judgment ("RPFJ") in captioned Civil Action 98-1232 for sixty (60) days after the United States complies with the requirement for a Competitive Impact Statement ("CIS") set forth in 15 U.S.C. 16(b). Relpromax Antitrust Inc. ("Relpromax") hereby asserts its statutory right, which is also the statutory right of all Americans, to consider for sixty (60) days a CIS which meets the requirements of 15 U.S.C. 16(b) and then to file with the United States such written comments as it deems appropriate with respect to the RPFJ in light of the information disclosed in the CIS pursuant to 15 U.S.C. 16(b).

Accordingly, Relpromax seeks an order:

1) granting Relpromax status as an amicus curiae with the right of limited participation in proceedings so it can assist, if necessary, in obtaining, inter alia, the statutorily required (and Court ordered) CIS;

2) compelling the United States to comply with the statute and the November 8, 2001, order; and,

3) extending the time for comments to provide Relpromax and all interested parties with their statutory rights.

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 15, 2001, the United States filed a CIS.

On November 28,2001, the CIS was published in the Federal Register.

III. ARGUMENT

The Tunney Act, 15 U.S.C. 16(b)(3), (4), and (6) requires in pertinent part a CIS which provides:

  1. "an explanation of the proposal for a consent judgment, including an explanation of any unusual circumstances giving rise to such proposal or any provision contained therein, relief to be obtained thereby, and the anticipated effects on competition of such relief;

  1. the remedies available to potential private plaintiffs damaged by the alleged violation in the event that such proposal for the consent judgment is entered in such proceeding; and

  1. a description and evaluation of alternatives to such proposal actually considered by the United States."

In violation of 15 U.S.C. 16(b)(3), the CIS does not contain anything approaching an analysis of the effects of the RPFJ on competition.

In violation of 15 U.S.C. 16(b)(4), the CIS does not analyze or explain the effect of the RPFJ on private litigants.

In violation of 15 U.S.C. 16(b)(6), the CIS does not contain a full evaluation of all alternatives to the RPFJ actually considered by the United States. The CIS mentions, but does not evaluate, numerous other alternatives.

Further, no documents considered determinative in formulating the RPFJ throughout the negotiation process were disclosed as required by 15 U.S.C. 16(b).

Accordingly, entry of an order in the form submitted herewith is respectfully requested.


REQUEST FOR ORAL HEARING

An oral hearing on this motion is requested pursuant to 15 U.S.C. 16(0(5).

  Respectfully submitted,

 

January 28, 2002 ___________/s/___________
Peter Peckarsky (D.C. Bar No. 266171)
1615 L Street, N.W., Suite 850
Washington, D.C. 20036
Telephone: (202) 785-0100
Telecopier: (202) 408-5200

Attorney for Relpromax Antitrust Inc.