## Facts

- Microsoft dominated the market for operating systems used on IBM-compatible personal computers.
- After an FTC investigation ended without action, the Department of Justice investigated Microsoft’s licensing practices.
- In July 1994, the United States filed a civil antitrust complaint alleging Microsoft violated Sherman Act § 2 through certain licensing practices that helped maintain monopoly power.
- The government simultaneously filed a negotiated proposed consent decree limiting specified licensing practices, without addressing all potential antitrust concerns about Microsoft’s conduct.
- Under the Tunney Act, the district court was required to determine whether the proposed consent decree was “in the public interest.”
- The district judge reviewed public comments and materials beyond the complaint and referenced allegations of additional misconduct not charged by the government.
- The district court refused to enter the decree, reasoning it could not assess the decree’s adequacy without knowing why the government did not bring broader claims and suggesting the remedy should have been wider.
- The United States and Microsoft appealed, arguing the district court exceeded its authority under Tunney Act § 16(e) by effectively second-guessing prosecutorial choices and treating the proceeding as an inquiry into uncharged conduct.

## Issues

1. Under Tunney Act § 16(e), may a district court reject a proposed antitrust consent decree because it believes the government should have pursued broader claims or remedies than those alleged in the complaint?
2. What deference must a district court give the Department of Justice’s charging and settlement decisions when conducting “public interest” review of a proposed antitrust consent decree?

## Decision

- The D.C. Circuit reversed the district court.
- The court held the district court exceeded its authority by reaching beyond the complaint and evaluating the decree against uncharged allegations and broader potential remedies.
- The court concluded the decree was “within the reaches of the public interest” because it provided substantial relief for the violations alleged and there was no indication of illegality, collusion, or bad faith.
- The case was remanded with instructions to enter an order approving the consent decree.

## Legal Principles

- Tunney Act “public interest” review is limited to determining whether the proposed decree is within the range of acceptability in light of the violations alleged, not whether the government could have pursued additional claims.
- Courts must give substantial deference to the Executive Branch’s prosecutorial discretion and settlement judgments in antitrust enforcement.
- A district court may assess whether the decree reasonably addresses the complaint’s allegations and may consider concerns such as enforceability, duration, and competitive impact, but may not effectively rewrite the complaint or condition approval on additional prosecution.
- Consideration of public comments and materials outside the pleadings is permitted, but the court may not use extra-record allegations as a substitute for charged claims to justify rejecting a decree.
- The government is not obligated to sue over all possible violations uncovered in an investigation, and Tunney Act review does not authorize a de facto trial on uncharged conduct.

## Conclusion

The D.C. Circuit required approval of the Microsoft consent decree, holding that Tunney Act review is deferential and confined to whether the settlement reasonably remedies the violations alleged, not whether the government should have brought broader claims or obtained a more expansive decree.


United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995)