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
Tunney Act Hearing
MEMORANDUM OF PLAINTIFF UNITED STATES IN RESPONSE TO MOTION OF
THE AMERICAN ANTITRUST INSTITUTE, INC. FOR LIMITED PARTICIPATION
AS AMICUS CURIAE OR OTHERWISE PURSUANT TO 15 U.S.C. § 16(f)(3) AND
MEMORANDUM IN SUPPORT THEREOF
The United States opposes the motion of the American Antitrust Institute, Inc.
(“Institute”) for “limited” participation in this proceeding pursuant to 15 U.S.C. § 16(f)(3).
Although we recognize that it is “solely within the discretion of the [C]ourt to determine the fact,
extent, and manner of participation” by amici, Order, Sept. 21, 2001, at 1, the extraordinary
nature of the Institute’s proposal for its own participation requires that we urge the Court, in the
exercise of its sound discretion, to reject the proposal. That rejection could appropriately be
without prejudice to the possibility of Institute participation under the terms of the policy the
Court determines to apply generally to third-party participation in this Tunney Act proceeding.
Almost four weeks ago, the Institute initiated a separate action, belatedly alleging that
both the United States and Microsoft had failed last fall to comply with certain requirements of
UNITED STATES OF AMERICA et al v. MICROSOFT CORPORATION
1The Court dismissed all claims based on the Tunney Act, but “[d]ue to the need for an
expedited ruling” on the Institute’s motion for a preliminary injunction, Memorandum Opinion
(D.D.C. Feb. 20, 2002)(“AAI Op.”) at 17, held in abeyance the motion of the United States to
dismiss claims based on the Administrative Procedures Act and 28 U.S.C. § 1361 (mandamus),
which were not bases for the preliminary injunction motion.
2The Institute’s filing incorporates by reference five filings from the AAI litigati