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IN THE UNITED STATES DISTRICT COURT
PLAINTIFFS' JOINT MEMORANDUM IN RESPONSE TO MICROSOFT'S PROPOSED FINDINGS OF FACT
Plaintiffs' initial and revised Proposed Findings of Fact ("PJPF") set forth detailed, overwhelming evidence of the elements of plaintiffs' antitrust claims. This evidence comes, in part, from credible and knowledgeable representatives of many of the country's most successful technology companies (IBM, Apple, Sun, Intel, Intuit, America Online). It comes also from distinguished economic and technical experts recognized as leaders in their fields.
At trial Microsoft relied on the testimony of its own employees (who repeatedly contradicted their own contemporaneous documents), two representatives of software companies (whose businesses were admittedly dependent on special relationships with Microsoft (see, e.g., GX 1663 at 9; GX 2276 at 46-47, 56-57), and who were offered essentially as character witnesses for the defendant), a Compaq representative, and an economist (whose testimony contradicted settled economic theory, his own writings, his own testimony in prior cases, and the record evidence in this case). The one potentially credible independent technical expert listed by Microsoft as a witness was dropped as a witness after he refused at his deposition to support various Microsoft assertions. Even with Microsoft's apparent criteria for witness selection, however, every critical element of plaintiffs' claims is supported by the admissions of Microsoft's own witnesses and Microsoft's own contemporaneous documents.
Microsoft's initial Proposed Findings ("MPF") ignore most of the evidence against it, mischaracterize much of the evidence that is not ignored, and argue for a series of propositions that are, as a factual matter, at odds with the trial record and, as an economic and legal matter, irrelevant even if true.
I. Monopolization of the PC Operating System Market
Plaintiffs' monopolization claim has two elements:
A. Microsoft's Monopoly Power
Microsoft's monopoly power is proven by the uncontradicted evidence that Microsoft's customers have no viable commercial alternative to Microsoft's operating system.
Microsoft's monopoly power is also proven by its power over the price of its operating systems.