Each of us—one an attorney and the other two software experts—has substantial experience monitoring the implementation of court-ordered remedies in two leading hi-tech cases: United States v. Microsoft Corp. and United States v. Bazaarvoice, Inc.

We discuss challenges that attorney and expert monitors confront in overseeing company compliance with antitrust remedial decrees in cases against hi-tech companies. We first summarize the legal principles applicable to antitrust remedies. Thereafter, we discuss oversight in the Microsoft and Bazaarvoice cases. Finally, we offer takeaways on effective antitrust decree monitoring.

Two takeaways are particularly noteworthy. First, expect the unexpected. During monitoring oversight, implementing the court decree’s relatively general relief provisions will likely uncover unanticipated issues that prove challenging to resolve and may often require hi-tech expertise to do so. Second—and relatedly—be skeptical of company resistance. Court-ordered relief is unlikely to align with company business interests; if it did, the company probably would have adopted the practice without being ordered to do so. Accordingly, company incentives probably will militate toward a cramped view of decree implementation.

Monitors therefore should refrain from taking company protestations at face value and should be prepared to leverage hi-tech expertise to probe company systems, data, and personnel for verification or refutation of company positions. Finally, with artificial intelligence and computational law (including antitrust) continuing to develop, we call attention to opportunities to use computer-automated processes to inform compliance oversight.

Volume 5 (2025)

Phone: 650.723.2465
Fax: 650.725.0253

Volume 4 (2024)

Volume 3 (2023)

Volume 2 (2022)

Volume 1 (2021)