IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Civil Action No. 98-1232 (CKK)
Next Court Deadline: March 6, 2002
DEFENDANT MICROSOFT CORPORATION’S MEMORANDUM
IN OPPOSITION TO PROCOMP’S MOTION FOR LIMITED
INTERVENTION OR TUNNEY ACT PARTICIPATION
The Project to Promote Competition & Innovation in the Digital Age
(“ProComp”) does not satisfy the criteria for intervention under Rule 24 of the Federal Rules
of Civil Procedure, nor does ProComp propose to present information to the Court beyond
what ProComp already has submitted as more than 125 pages of comments in this action.
ProComp’s motion for intervention or in the alternative seeking participation in the Tunney
Act proceedings, as an amicus curiae or otherwise, should be denied.
ProComp Does Not Meet the
Requirements for Intervention.
The Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b) et seq. (the
“Tunney Act”) does not allow a party to intervene as of right in a Tunney Act proceeding.
Nor is permissive intervention appropriate in this action. The Court, in its discretion, may
consider limited participation of an interested non-party at such time as the Court makes its
UNITED STATES OF AMERICA et al v. MICROSOFT CORPORATION
public interest determination. 15 U.S.C. § 16 (f) (3). Intervention is then at the discretion of
the Court following the closing of the comment and response period. Id. This case has not
yet reached that point, and there is no present basis for any other participation; nor would
even a timely motion for permission intervention be meritorious.
ProComp Has No Right to Intervene.
Rule 24(a) of the Federal Rules of Civil Procedure provides:
(a) Intervention of Right. Upon timely application anyone
shall be permitted to intervene in an action : (1) when a statute
of the United