Webinar Recap: The Microsoft Case and Today’s Big Tech Wars: A Peek into the Past to See the Future?
American Bar Association, 2024
Analysis Group Vice President Katrina Messina and Associate Igor Cerasa have published an article summarizing the American Bar Association (ABA) webinar “The Microsoft Case and Today’s Big Tech Wars: A Peek into the Past to See the Future?” on the Antitrust Law Section of the ABA’s website. John Taladay (Baker Botts) moderated the webinar, which was produced by ABA’s Thought Leadership in Antitrust Law & Academia Taskforce and the ABA’s Civil Practice and Procedure, Media and Technology, and Federal Civil Enforcement Committees. Panel participants included Rima Jamil Alaily (Microsoft), Adam Cella (House Judiciary Committee), Andrew Gavil (Howard University School of Law), and Carl Shapiro (University of California, Berkeley). The authors recapped the panelists’ discussion of the US Court of Appeals for the District of Columbia Circuit’s 2001 opinion in United States v. Microsoft Corporation and its legacy for antitrust enforcement in the technology sector.
After Mr. Taladay presented an overview of the Microsoft case – in which the US Department of Justice (DOJ) charged Microsoft with antitrust violations for actions related to its promotion of its Internet Explorer browser – the panelists examined the ramifications at the time of the ruling for antitrust enforcement, constraints on Microsoft’s business, and technology innovation. The speakers also discussed legal and economic principles addressed in the Microsoft opinion that have been influential in later antitrust litigation, including the circuit court’s framework for evaluating allegedly monopolistic behavior. Key among these were the court’s consideration of factors beyond market share (e.g., the analysis of multiple barriers to entry), approach to market definition, and broad application of the consumer welfare standard.
Although the panelists identified multiple factors that may provide insight into whether courts in future antitrust cases will treat Microsoft as precedent, the panelists did not reach consensus regarding whether Microsoft’s impact will endure. The conversation concluded with a discussion about court remedies in antitrust cases, with the speakers presenting various perspectives on how remedies impact companies’ behavior and the efficacy of remedies to restore lost competition.
Authors
Messina K, Cerasa I