IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________ )
NETSCAPE COMMUNICATIONS )
CORPORATION, )
466 Ellis Street )
Mountain View, California, ) Civil Action No. _____
)
Plaintiff, ) JURY TRIAL DEMANDED
)
v. ) (Per Local Civil Rule 40.5, Related to Civil
) Action Nos. 98-1232 and 98-1233)
MICROSOFT CORPORATION, )
One Microsoft Way )
Redmond, Washington, ))
Defendant. ))
____________________________________ )
COMPLAINT
This action follows the determination of Microsoft Corporation's ("Microsoft") antitrust
liability in United States v. Microsoft, Civil Action Nos. 98-1232 and 98-1233, unanimously affirmed by
the Court of Appeals, where it was found that Microsoft's illegal acts had "inflicted considerable harm on
Netscape's business." Netscape Communications Corporation ("Netscape") thus brings this action against
Microsoft to prevent further injury to Netscape, to restore competition lost in the market for Web
browsers, to foster competition in the market for operating systems, and to receive treble damages
compensation for the harms inflicted upon it by Microsoft. Netscape seeks this relief under Sections 1 and
2 of the Sherman Act, sections 28-4502, 4503, 4508, and 4510 of the District of Columbia Code, and
under the common law, for harm resulting from Microsoft's anticompetitive conduct in the markets for Intel-
compatible personal computer ("PC") operating systems and Web browsers worldwide. Plaintiff alleges
as follows:
Nature of The Action
1. In 1994, the year Netscape was founded, it released the final version of
its initial Web browser product, Netscape Navigator 1.0. The release of Netscape Navigator is widely
viewed as having sparked the Internet revolution, which has transformed not just the world of personal
computing, but the way that people communicate, interact, and conduct business. The demand for
Netscape's browser and its companion server products, Netscape Commerce Server 1.0 and Netscape
Communications Server 1.0, was enormous and unprecedented. By 1995, Netscape was the fastest-
growing software company in history, and the demand for its browser and related products was causing
its revenues to skyrocket.
2. Netscape's browser and related products proved to be a catalyst for
intense developer interest in the Internet. For example, more than 12,000 software developers joined the
Netscape Development Partners Program in 1995. Netscape Navigator won more than 20 product
awards in 1995 and, by the end of 1995, Netscape had distributed 15 million Web browsers around the
world. Netscape's customers included 70 percent of the Fortune 100, and Netscape Internet Applications
were being selected by large and influential customers like MCI, Dataquest and Dow Jones Corporation.
3. In 1994, at the same time Netscape began its dramatic rise, Microsoft was
the largest and most important software company in the world, renowned for its marketing and financial
muscle. By then, Microsoft had acquired monopoly power in the market for Intel-compatible PC
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operating systems. Much of Microsoft's monopoly power reflects the fact that Microsoft's Windows
operating system is the "platform" for which there are the greatest number, variety, and quality of
applications and that therefore PC users select Windows in order to have access to these applications. In
turn, because the vast majority of PC customers use the Windows operating system, writers of applications
will write their programs to work with the Windows interfaces, in order to appeal to as many potential
customers as possible. This self-reinforcing effect of PC customers choosing Windows because PC
software developers write applications for Windows, and software developers choosing to make their
applications compatible with Windows because most customers use Windows, presents a significant barrier
to entry that has blunted attempts to develop alternative platforms to Windows. As a result, Microsoft has
possessed and sustained its monopoly power for Intel-compatible PC operating systems for a lengthy
period of time.
4. While Microsoft was late in recognizing the potential significance of the
Internet, Netscape's remarkable success did not go unnoticed at Microsoft. The Netscape browser,
Netscape Navigator, posed a direct threat to Microsoft's monopoly power for Intel-compatible PC
operating systems, as it threatened to undermine the barriers to entry protecting the Windows platform
monopoly. Netscape Navigator offered the potential to become an alternative competitive platform on
which software applications and programs could run. In essence, the Netscape browser can be a software
"layer" (also called "middleware") between the operating system and application programs, allowing
software developers to write programs to interface with Navigator instead of with the PC operating system.
Because the Netscape browser operates not only on Windows but also on a variety of other operating
systems, if software developers could write programs that interface with Navigator, it would no longer
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matter which operating system was on a PC user's computer. In other words, any PC user that had
Netscape Navigator on its computer could run any software developed for Navigator regardless of the
underlying operating system. The widespread adoption and use of Navigator therefore would create
significant potential to reduce the dependence of most PC users on any particular operating system, such
as Windows. In Microsoft Chairman Bill Gates' own words, Netscape Navigator threatened to turn
Windows into mere "plumbing."
5. As Netscape achieved its phenomenal success in 1995, Microsoft
immediately began taking steps to neutralize Netscape and the threat it posed. To address this competitive
threat, Microsoft first tried to persuade Netscape to abandon its efforts to develop Navigator into an
alternative platform, offering to divide the Web browser market between the two companies. Netscape
refused. Once it became clear to senior executives at Microsoft that Netscape would not abandon its
efforts to develop Navigator into a platform, Microsoft focused its efforts on ensuring that few developers
would write their applications to rely on the interfaces that Navigator exposed. Developers would write
to the interfaces exposed by Navigator in numbers large enough to threaten Microsoft only if they believed
that Navigator would emerge as the standard software employed to browse the Web.
6. Microsoft thus developed its own Web browser, Internet Explorer, and
set out to maximize Internet Explorer's share of Web browser usage at Navigator's expense through any
means necessary. Within Microsoft, achieving a higher browser market share for Internet Explorer became
"job 1." Bill Gates himself made this clear on January 5, 1996, stating that "[w]inning Internet browser
share is a very very important goal for us."
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7. To achieve its goal, Microsoft was not content to compete by attempting
to offer a better Web browser product and persuading users to use its Web browser. As a senior
Microsoft executive acknowledged, if Microsoft only competed on the merits, "I don't understand how IE
[Internet Explorer] is going to win." Rather, Microsoft needed to illegally exploit its monopoly power over
Intel-compatible PC operating systems in order to undercut Netscape's ability to distribute its Web
browser.
8. Microsoft thus embarked on a series of anticompetitive and exclusionary
acts so as to undermine Netscape's ability to grow into an alternative competitive platform. This series of
acts included at least the following acts. Microsoft forced original equipment manufacturers ("OEMs") to
accept exclusionary license restrictions that caused them to stop dealing with Netscape and instead
exclusively use Internet Explorer; indeed, Microsoft threatened OEMs with loss of their licenses to the
Windows operating system if they did not comply with these illegal provisions. Microsoft "bolted together"
its monopoly operating system and Internet Explorer, requiring every customer that wanted to purchase
Microsoft's monopoly operating system also to take Microsoft's Web browser and making it difficult to
remove Internet Explorer from the operating system. Microsoft provided early information on changes and
upgrades to its monopoly operating systems critical to all software developers and other preferential
support only to those developers that agreed to exclusionary arrangements with Microsoft, which had the
effect of foreclosing distribution of Netscape's browser. Microsoft coerced exclusionary dealing
arrangements with Internet Access Providers and Internet Service Providers that limited Netscape's
browser distribution. Microsoft forced Apple to replace Netscape as its default browser with Internet
Explorer by threatening Apple with loss of the Macintosh Office application. The purpose and effect of
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Microsoft's anticompetitive and exclusionary campaign has been to reduce Navigator's market share and
viability so as to prevent Netscape's Web browser from becoming a platform for software applications that
could threaten Microsoft's Windows monopoly and to establish and maintain a Microsoft monopoly in the
Web browser market.
9. A Web browser is a software program used to "surf" the World Wide
Web. A company distributing Web browsers can generate income by licensing the browser and/or by
enjoying increased revenues from web portals linked to the Web browser, licenses of server application
software, sales of advertising and links on the Web browser, sales of web development tools and other
sources of revenues linked to distribution of the Web browser. A company distributing a Web browser
therefore enjoys higher profits from greater distribution of its browser, in terms of possible direct licensing
revenues and other revenue streams that result from browser distribution. As just discussed, a Web
browser can also be developed as a platform for software development.
10. There is a relevant market for Web browsers. In technical terms, a Web
browser is a software program on a PC that presents a graphical interface designed to allow a user to be
able to navigate, view, type in Uniform Resource Locators, move backward and forward, stop, reload and
operate virtually all Web content located on separate servers. Products such as Netscape Navigator,
Internet Explorer and Opera are Web browsers because they are designed to allow a user to perform all
these functions and to access virtually all Web content. Other software products (including software
programs that have some ability to access content on the World Wide Web) are not in the relevant market
for Web browsers because they do not provide the full range of functionality offered by Web browsers and
do not provide access to virtually all Web content. There is a demand by users for the full functionality
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provided by Web browsers for which other software programs are not a substitute. New entry into the
Web browser market is difficult, in part, because of the existence of network effects that cause Web
developers to prefer to develop applications and content for the dominant Web browser and cause Web
browser users to prefer the Web browser for which Web applications and content have been optimized.
11. In 1995, Netscape Navigator had a greater than 70 percent share of the
Web browser market and had the potential to become an alternative platform that would tear down the
barriers to entry in the Intel-compatible PC operating system market and compete with Windows. As a
result of Microsoft's exclusionary campaign of illegal actions, Navigator's market share in the browser
market today has fallen below 20 percent and Microsoft Internet Explorer's share is now above 80
percent. This loss of market share had a major adverse effect on Netscape's revenues and profitability.
Today, it is estimated that Microsoft has more than 100 million browser users, a substantial percentage of
whom would have chosen Netscape Navigator on its merits if not for Microsoft's methods of abusing its
monopoly power to induce the usage of Internet Explorer. Microsoft's illegal conduct also succeeded in
blunting the broad use of Netscape's browser as an alternative platform for software development.
12. Microsoft's illegal actions resulted in harm to competition and antitrust
injury to Netscape in particular. Netscape was seriously damaged by Microsoft's illegal conduct in at least
the following ways: it lost browser licensing revenues; it lost browser market share that would have led
to other significant sources of revenues, including portal revenues and revenues from its enterprise software
and products businesses; its marketing and distribution costs were significantly increased; it lost goodwill
and going concern value; and it lost the profits that would have existed if Microsoft had not acted illegally
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to prevent Netscape's browser technology from providing a competitive alternative to Microsoft's
monopoly operating system as a development platform.
13. This lawsuit seeks to recover all the damages to Netscape, trebled in
accordance with the law. Netscape also seeks equitable relief to eliminate the continuing effects of
Microsoft's illegal conduct and to restore competition lost in the operating system market and in the Web
browser market because of Microsoft's illegal conduct. Indeed, Microsoft's illegal actions and the harms
to Netscape are ongoing.
The Governments' Case Against Microsoft
14. The United States Department of Justice and the Attorneys General of
nineteen (19) states brought suit against Microsoft in connection with many of these same facts and issues
in the United States District Court for the District of Columbia in matters captioned United States of
America v. Microsoft Corp., No. 98-1232 and State of New York et al. v. Microsoft Corporation,
No. 98-1233. On November 5, 1999 and April 3, 2000, after more than a year of proceedings, the
Federal District Court issued Findings of Fact (84 F. Supp. 2d 9) and Conclusions of Law (87 F. Supp.
2d 30) determining that Microsoft's anticompetitive campaign against Netscape violated sections 1 and 2
of the Sherman Act, along with several state antitrust statutes, including D.C. Code §§28-4502, 4503. The
Federal District Court's Findings repeatedly identify Netscape as a principal and prominent victim of
Microsoft's illegal conduct, concluding that "[n]ot only did Microsoft prevent Navigator from undermining
the applications barrier to entry, it inflicted considerable harm on Netscape's business in the process."
Finding of Fact ¶ 379.
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15. On June 7, 2000, the Federal District Court issued its Memorandum and
Order and its Final Judgment with regard to the remedies it deemed necessary to ensure that Microsoft will
not again occupy a position where it can abuse its monopoly power or otherwise diminish competition in
the future. On June 28, 2001, the United States Court of Appeals for the District of Columbia issued an
opinion that affirmed in part, reversed in part and remanded in part the District Court's rulings. See United
States of America v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). Of most significance here, the
Court of Appeals affirmed the District Court's central ruling that Microsoft has monopoly power in the
market for Intel-compatible PC operating systems and that many of Microsoft's exclusionary business
practices that harmed Netscape constituted an illegal abuse of Microsoft's monopoly power in violation
of Section 2 of the Sherman Act and state statutes. Although the Court of Appeals ordered a remand of
the case as to the precise remedies needed to redress Microsoft's illegal monopoly maintenance, the Court
of Appeals upheld the District Court's Findings of Fact findings that specifically describe how Microsoft's
illegal behavior substantially harmed Netscape. In affirming that Microsoft had violated Section 2 of the
Sherman Act, the Court of Appeals also concluded that Microsoft's illegal behavior harmed Netscape.
See, e.g., 253 F.3d at 75 ("Microsoft undertook a number of anticompetitive actions that seriously reduced
the distribution of Navigator") and id. at 71 ("By ensuring that the `majority' of all IAP subscribers are
offered IE either as the default browser or as the only browser, Microsoft's deals with the IAPs clearly have
a significant effect in preserving its monopoly; they help keep usage of Navigator below the critical level
necessary for Navigator or any other rival to pose a real threat to Microsoft's monopoly.").
16. On August 7, 2001, Microsoft petitioned the Supreme Court for a writ of
certiorari seeking review of the Court of Appeals' decision, including its decision not to vacate the District
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Court's Findings of Fact and Conclusions of Law. In its petition, among other things, Microsoft argued
that vacating the Findings of Fact was important because so long as the Court of Appeals' decision was
valid, other "plaintiffs undoubtedly will argue that certain findings should be given preclusive effect."
Nonetheless, on October 9, 2001, the Supreme Court denied Microsoft's certiorari petition.
17. On November 6, 2001, the Department of Justice and several state
attorneys general tentatively agreed to a proposed final judgment in Civil Actions No. 98-1232 and No.
98-1233. The adequacy of the proposed remedies is now being determined under the Tunney Act
process. Nine state attorneys general rejected the proposed final judgment as inadequate and are
continuing to prosecute Civil Action No. 98-1233. Beginning in March 2002, the District Court is
scheduled to hear testimony from the remaining state attorneys general on the proper remedies for
Microsoft's illegal conduct at issue in that case.
18. Neither the Government nor the Federal District Court in Civil Actions No.
98-1232 and No. 98-1233 has addressed the question of the compensation and specific relief owed to
Netscape as a result of its being directly injured by Microsoft's illegal conduct since 1995, leaving that issue
to be decided in the context of this private civil action. In light of the Court of Appeals' final decision on
liability in United States v. Microsoft, and the binding and preclusive effect of that decision and the
affirmed Findings of Fact on subsequent claims for antitrust liability related to Microsoft's actions,
Netscape now brings this action for injunctive relief, damages and other relief under federal and state
antitrust statutes. In addition, notwithstanding the district and appellate court decisions against Microsoft
in United States v. Microsoft, Microsoft has continued to engage in activities already adjudicated as
illegal, and has undertaken further anticompetitive acts that now call for redress as well.
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Jurisdiction And Venue
19. The federal antitrust claims are instituted under Sections 1 and 2 of the
Sherman Act, 15 U.S.C. §§ 1 and 2, and Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26.
The state antitrust actions are instituted under District of Columbia Code §§ 28-4502, 28-4503, 28-4508,
and 28-4510. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, and 1367.
20. Venue is proper in this District under Section 12 of the Clayton Act, 15
U.S.C. § 22, and 28 U.S.C. § 1391, because defendant Microsoft transacts business and is found within
this District.
The Parties
21. Plaintiff Netscape Communications Corporation is a Delaware corporation
with its principal place of business in Mountain View, California. Netscape pioneered the development of
Web browsers to enable users to access content on the Internet even if they are not experienced computer
users. Netscape's flagship product, Netscape Navigator, helped the Internet to explode in popularity and
fueled the Internet revolution. On March 17, 1999, Netscape's ownership changed, but Netscape
continues to operate today in the same lines of business as before, though injured by Microsoft's illegal acts.
22. Defendant Microsoft Corporation is organized under the laws of the State
of Washington, with its principal place of business at One Microsoft Way, Redmond, Washington. Since
its inception, Microsoft has focused primarily on developing and licensing software. Microsoft sells and
licenses PC operating systems throughout the United States and the world and delivers copies of its
operating systems and Web browsers to OEMs and retail customers across state lines and international
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borders. Microsoft is engaged in, and its activities substantially affect, interstate and foreign commerce.
Microsoft's activities also have a substantial impact on commerce in the District of Columbia.
Count One
Sherman Act § 2 Illegal Monopoly Maintenance of Intel-Compatible PC Operating Systems
23. Plaintiff incorporates and restates the allegations in paragraphs 1 through
22 above.
24. There is a relevant market for the licensing of Intel-compatible PC
operating systems worldwide.
25. Microsoft possesses monopoly power in the relevant market for the
licensing of Intel-compatible PC operating systems. That market is characterized by significant entry
barriers.
26. As was previously adjudicated and found in United States v. Microsoft,
since at least 1995 Microsoft has willfully and wrongfully maintained and abused its monopoly power
through anticompetitive and exclusionary behavior directed at Netscape, including anticompetitive behavior
designed to prevent the Netscape Web browser from serving as an alternative platform that threatened
Microsoft's monopoly power in the operating systems market.
27. The foregoing acts and practices have harmed consumers and competition.
28. Microsoft's anticompetitive and exclusionary conduct has directly and
proximately caused injury to Netscape's business and property, as set forth above. Netscape's injury is
of the type the antitrust laws are intended to prohibit and thus constitutes antitrust injury. Unless the
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activities complained of are enjoined, Netscape also will continue to suffer injury for which Netscape is
without an adequate remedy at law.
Count Two
Sherman Act § 2 -- Further Acts of Illegal Monopoly Maintenance
29. Plaintiff incorporates and restates the allegations in paragraphs 1 through
28 above.
30. There is a relevant market for the licensing of Intel-compatible PC
operating systems worldwide.
31. Microsoft possesses monopoly power in the relevant market for the
licensing of Intel-compatible PC operating systems. That market is characterized by significant entry
barriers.
32. Even after having been adjudicated to have willfully and wrongfully
maintained and abused its monopoly power through anticompetitive and exclusionary behavior directed at
Netscape, Microsoft has continued its illegal conduct, and since the adjudication in Civil Actions No. 98-
1232 and No. 98-1233, has engaged in further anticompetitive behavior to further reduce Navigator's
market share and thereby eliminate any risk of Netscape developing its Web browser into an alternative
platform that would threaten Microsoft's monopoly power in the relevant operating systems market.
33. The foregoing acts and practices, and the continuing course of Microsoft's
anticompetitive conduct, have harmed consumers and competition.
34. Microsoft's anticompetitive and exclusionary conduct has directly and
proximately caused injury to Netscape's business and property, as set forth above. Netscape's injury is
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of the type the antitrust laws are intended to prohibit and thus constitutes antitrust injury. Unless the
activities complained of are enjoined, Netscape will suffer immediate and irreparable injury for which
Netscape is without an adequate remedy at law.
Count Three
Sherman Act § 1 Illegal Tying of Windows and Internet Explorer
35. Plaintiff incorporates and restates the allegations in paragraphs 1 through
34 above.
36. There are relevant worldwide markets for the licensing of Intel-compatible
PC operating systems and for Web browsers. Microsoft has had monopoly power in the relevant market
for the licensing of Intel-compatible PC operating systems since at least 1994.
37. Microsoft has illegally tied its Web browser product, Internet Explorer, to
its separate and distinct Intel-compatible PC operating system product, Windows.
38. The purpose and the effect of this tying are to prevent customers from
choosing among Web browsers on their merits and to foreclose competing browsers from an important
channel of distribution, thereby unreasonably restraining competition in the Web browser market. There
are no benefits from this tying that outweigh the harm to competition in the Web browser market.
39. The foregoing acts and practices, and the continuing course of Microsoft's
anticompetitive conduct, have harmed consumers and competition.
40. Microsoft's anticompetitive and exclusionary conduct has directly and
proximately caused injury to Netscape's business and property, as set forth above. Netscape's injury is
of the type the antitrust laws are intended to prohibit and thus constitutes antitrust injury. Unless the
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activities complained of are enjoined, Netscape will suffer immediate and irreparable injury for which
Netscape is without an adequate remedy at law.
Count Four
Sherman Act § 2 Illegal Monopolization of the Web Browser Market
41. Plaintiff incorporates and restates the allegations in paragraphs 1 through
40 above.
42. There is a relevant market for Web browsers. The geographic market for
Web browsers is worldwide.
43. For the last few years, Microsoft has possessed monopoly power in the
relevant market for Web browsers. Microsoft's monopoly power in the market for Web browsers is
protected by significant entry barriers.
44. Microsoft has willfully and wrongfully acquired, maintained and abused its
monopoly power in Web browsers through anticompetitive and exclusionary behavior.
45. The foregoing acts and practices, and the continuing course of Microsoft's
anticompetitive conduct, have harmed consumers and competition.
46. Microsoft's anticompetitive and exclusionary conduct has directly and
proximately caused injury to Netscape's business and property, as set forth above. Netscape's injury is
of the type the antitrust laws are intended to prohibit and thus constitutes antitrust injury. Unless the
activities complained of are enjoined, Netscape will suffer immediate and irreparable injury for which
Netscape is without an adequate remedy at law.
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Count Five
Sherman Act § 2 Attempted Monopolization of the Web Browser Market
47. Plaintiff incorporates and restates the allegations in paragraphs 1 through
46 above.
48. There is a relevant market for Web browsers. The geographic market for
Web browsers is worldwide.
49. Targeting Netscape, Microsoft has willfully and wrongfully engaged in
anticompetitive and exclusionary conduct in order to obtain monopoly power in the Web browser market.
Microsoft has acted with a specific intent to monopolize, and to destroy effective competition in, the Web
browser market. Microsoft's anti-competitive conduct has had a dangerous probability of success and
Microsoft has in fact achieved a dominant position in the market for Web browsers. That dominant
position combined with significant barriers to entry make it difficult for other companies to enter the Web
browser market and compete with Microsoft.
50. The foregoing acts and practices, and the continuing course of Microsoft's
anticompetitive conduct, have harmed consumers and competition.
51. Microsoft's anticompetitive and exclusionary conduct has directly and
proximately caused injury to Netscape's business and property, as set forth above. Netscape's injury is
of the type the antitrust laws are intended to prohibit and thus constitutes antitrust injury. Unless the
activities complained of are enjoined, Netscape will suffer immediate and irreparable injury for which
Netscape is without an adequate remedy at law.
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Count Six
Parallel Violations of District of Columbia Code §§ 28-4502 and 28-4503
52. Plaintiff incorporates and restates the allegations in paragraphs 1 through
51 above.
53. Microsoft's conduct as alleged herein also violates District of Columbia
Code §§ 28-4502 and 28-4503.
54. The foregoing acts and practices, and the continuing course of Microsoft's
anticompetitive conduct, have harmed consumers and competition.
55. Microsoft's anticompetitive and exclusionary conduct has directly and
proximately caused injury to Netscape's business and property, as set forth above. Netscape's injury is
of the type the antitrust laws are intended to prohibit and thus constitutes antitrust injury. Unless the
activities complained of are enjoined, Netscape will suffer immediate and irreparable injury for which
Netscape is without an adequate remedy at law.
Count Seven
Tortious Interference
56. Plaintiff incorporates and restates the allegations in paragraphs 1 through
55 above.
57. Microsoft's conduct as alleged herein gives rise to common law liability for
intentional interference with contractual relations and intentional interference with prospective economic
advantage and/or prospective contractual or business relations.
58. At all relevant times, Netscape had valid contractual relationships or
legitimate expectations of legally enforceable contractual or economic relationships with third parties.
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59. The foregoing relationships would have provided economic and other
benefits to Netscape but for Microsoft's tortious and anticompetitive conduct.
60. At all relevant times, Microsoft knew of Netscape's valid and legally
enforceable contractual and prospective contractual and economic relationships with third parties.
61. Microsoft willfully engaged in the foregoing acts and practices with the
intent to induce breach or disruption of Netscape's existing and prospective contractual and economic
relationships with third parties.
62. Microsoft's deliberate and primary purpose in engaging in some, if not all,
of the foregoing acts and practices was to disrupt Netscape's prospective contractual and economic
relationships with third parties.
63. The foregoing acts and practices, and Microsoft's continuing course of
anticompetitive and tortious conduct, were and are wrongful for reasons in addition to their impact on
Netscape's business and prospects for economic advantage and development.
64. The foregoing acts and practices, and the continuing course of Microsoft's
anticompetitive and tortious conduct, deliberately and directly resulted in actual breaches or disruptions of
Netscape's existing and prospective contractual and business relations with third parties.
65. The foregoing acts and practices, and the continuing course of Microsoft's
anticompetitive and tortious conduct, directly and proximately caused Netscape to suffer injury and
damages to its business and property, as set forth above.
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66. Microsoft committed these tortious acts with deliberate and actual malice,
ill-will, and specific knowledge that its actions constituted an outrageous, willful and wanton disregard of
Netscape's legal rights.
Relief Requested
WHEREFORE, plaintiff asks for the following relief: (a) injunctive relief sufficient to prevent
further antitrust injury to Netscape and to restore competition lost in the market for Web browsers, and
to enable middleware platforms to compete with Intel-compatible PC operating systems; (b) an award to
plaintiff of its actual damages in an amount to be determined at trial, trebled pursuant to Section 4 of the
Clayton Act, 15 U.S.C. § 15 and District of Columbia Code § 28-4508(a)(1), along with interest on such
damages; (c) an award to plaintiff of its costs, including reasonable attorney's fees, as provided in Sections
4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26 and District of Columbia Code § 28-4508(a)(2);
(d) with respect to Count VII, an award of punitive damages sufficient to punish and deter Microsoft from
repeating its unlawful conduct in the future; and (e) such further relief as the Court may deem just and
equitable.
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Respectfully submitted,
_____________________________
Jeffrey A. Rosen (D.C. Bar No. 367245)
James W. Draughn, Jr.
Michael S. Becker
Colin R. Kass
KIRKLAND & ELLIS
655 Fifteenth Street, N.W.Suite 1200
Washington, D.C. 20005
(202) 879-5000
Fax: (202) 879-5200
Robert D. Joffe
Evan R. Chesler
Richard W. Clary
CRAVATH, SWAINE & MOORE
Worldwide Plaza, 825 Eighth Avenue
New York, New York 10019
(212) 474-1000
Fax: (212) 474-3700
Attorneys for Plaintiff
NETSCAPE COMMUNICATIONS
CORPORATION
Dated: January 22, 2002
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