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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 COLUMBIA
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 request.
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)
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.
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.
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.
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 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 between participating groups may include:
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 experts.
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.
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 the press.
1. For purposes of this Agreement, the California Group does not include West Virginia.
New York v. Microsoft Corp., Civil Action No. 98-1233 (CKK) (D.D.C.)
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.