Tunney Act: A call to action

Thanks to the U.S. v. Microsoft case, an obscure Nixon-era antitrust law is finally enjoying its 15 minutes of fame.

The 1974 Tunney Act was designed to ensure that government antitrust settlements are in the public interest and that no backroom political deal-making compromises the process. Signed into law the same year that the United States launched its antitrust suit against AT&T, the statute has rarely been the stuff of headline news. Indeed, few antitrust cases capture widespread attention--or garner significant public comment.

But U.S. v. Microsoft is not your ordinary antitrust case.

One of the Tunney Act's requirements is that the government solicit public comment before finalizing any antitrust settlement. Last November, the United States and Microsoft tentatively agreed to a proposed final judgment. The Tunney Act mandates that the public may submit comments for at least 60 days after the proposed final judgment is published in the Federal Register.

In this particular antitrust case, the public commented--with a vengeance. By the end of the sixty day period, January 28, the Justice Department had received 30,000 comments. Roughly half of the comments were against the settlement, while 7,500 favored the deal. Another 7,000 comments were dismissed as form letters, spam, or other unsupported opinion--sentiments like "I just hate Microsoft."

There's little doubt that the volume of response was encouraged by partisan efforts on both sides: Microsoft's Freedom to Innovate Network site offered to help people file their comments, while California software engineer Dan Kegel and Code Weavers CEO Jeremy White's respective Web efforts boosted the number of submitted objections.

The Tunney Act also requires that the government and the antitrust defendant disclose all communications related to the settlement process. The American Antitrust Institute, a non-profit antitrust group, believes this clause was violated by Microsoft and DOJ representatives, either by deliberately avoiding disclosure of information or by providing misleading information. The Institute filed a lawsuit in January alleging that the Justice Department and Microsoft failed to properly disclosing contacts that resulted in the proposed settlement.

Now that the comment period has ended, it remains to be seen what, if anything, U.S. District Court Judge Colleen Kollar-Kotelly will do with the deluge of opinions. A possible clue to Kollar-Kotelly's intentions came last month when the judge asked Microsoft and the Justice Department if they were planning any changes to the settlement proposal in response to public comments. The Justice Department and Microsoft said they would notify the court of any changes on or before February 27. The Tunney Act hearings are scheduled for March 4.

Jonathan Jacobson, an antitrust attorney with Akin, Gump, Strauss, Hauer & Feld in New York, called the judge's query "highly unusual." "I am not aware of a court ever asking settling parties in a Tunney Act proceeding expressly whether they intend to change a settlement as the result of comments received," Jacobson said. "It's an unusual question that may (be a) sign she has some skepticism about the settlement and possibly sees some substance to the objections."

According to Jane Winn, the co-author of a leading treatise on electronic commerce law (Law of Electronic Commerce) and professor of law at Southern Methodist University, "Before [Kollar-Kotelly] can approve any settlement, she'll] have to determine if it's in the best interests of the People [of the United States of America]." In addition to the hearing in which the judge will be receiving comments from the public, Winn says, "The fact that so many states oppose--just as many as those that agreed to settle--will make it extremely difficult for any judge to conclude that the agreement is really in the best interests of the People."

Clearly, the judge is taking public comments under consideration.

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