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UNITED STATES DISTRICT COURT
COMPLAINT FOR DAMAGES AND INJUNCTION FOR
1. Bristol Technology, Inc ("Bristol") is a Delaware Corporation with its principal place of business in Danbury, Connecticut. 2. Microsoft Corporation ("Microsoft") is a Washington corporation with its principal place of business in Redmond, Washington. Microsoft is the owner and distributor of computer operating systems, including Windows, Windows 95, Windows 98, Windows for Workgroups and Windows NT (sometimes referred to herein as the "Windows family of operating systems"). Microsoft is also the owner and distributor of numerous application programs designed to function in a computer using one of the Windows family of operating systems. 3. This Court has jurisdiction pursuant to 15 U.S.C. §§15 and 26 and 28 U.S.C. §§1331, 1337 and 1367. With respect to the Seventh through Fourteenth Claims for Relief, this Court has jurisdiction pursuant to 28 U.S.C. §1332, in that there is complete diversity of citizenship between Bristol and Microsoft, and the amount in controversy, exclusive of interest and costs, exceeds $75,000. 4. Venue is proper in this District pursuant to 15 U.S.C. §22 and 28 U.S.C. §1391.
5. "Computer" means a system of electronic and electro-mechanical components that when controlled by programs is capable of accepting inputs of data represented by electrical impulses treated as ones or zeros, of performing logical and arithmetic operations on such data, of storing and retrieving such data and providing human-intelligible output in numbers, characters, sounds, graphic representations or other forms. 6. "Microcomputer" means a computer based around one or more microprocessors; that is, processors that fit on a single semiconductor chip or cartridge. 7. "Personal computer" means a microcomputer system all or most of which can be located on or in close proximity to an individual desk. The most common type of "personal computers" are based on Intel x86 microprocessors. 8. "Server" means a microcomputer that provides services, such as maintaining common files or managing e-mail, for one or more other computers which are called its "clients." A "server" may be dedicated exclusively to providing common services, or it may have other functions. 9. "Technical workstation" means a microcomputer offering very high performance, especially high computational performance. These computers are used for such things as designing airplanes or creating computer animations for courtrooms or movies. 10. "Program" means, generally, a series of statements ultimately expressed in electrical impulses organized to correspond to the decoding hardware of a computer, which statements cause a computer to perform a series of operations, to accept inputs and to produce outputs so as to carry out useful tasks. For purposes of this complaint, programs can be divided into two broad categories: computer operating systems and application programs. 11. "Application programs" are programs that give a computer its functionality and consumer utility. Applications programs provide the computer with instructions for the performance of tasks selected by the computer user. Word processing programs, spreadsheets and interactive games are examples of application programs. 12. "Computer operating systems" means computer programs that control the basic functions of the computer hardware and that facilitate interaction between applications programs and hardware. Operating systems provide the following functions:
The operating system installed in a given computer provides the critical layer of software between hardware and applications programs. All application programs used in computer must be able to present commands to and receive data and other responses from the operating system in precisely the format and according to the precise protocols used by that operating system. 13. "Windows family of operating systems" means the successive Microsoft operating systems listed above which were derived from Microsoft DOS and the "Windows Graphical User Interface" or "GUI." 14. "UNIX" means any version of the UNIX operating system, a computer operating system originally developed by American Telephone and Telegraph Co. ("ATT") which has received wide-spread acceptance within the technical community, and which was the operating system traditionally used in network management operating systems for the Internet. 15. "Program compatibility" means the ability of a computer system to execute programs without modification of such programs. As commonly used, program compatibility is typically used to refer to computer hardware or software, or hardware and software in combination, that can run programs not originally designed to run on such hardware or software. 16. "Programming interface" means the entire set of formats and protocols which define the ways and means that an application program can communicate with a given operating system. The programming interface tells the application developer what the operating system will do in response to a defined set of requests or calls issued by an application program. In order to function properly with an operating system, an application program must conform exactly to the formats and protocols of that operating system's programming interface. 17. "Personal computer networks" means groups of computers that are able to share data and programs using communications lines. Personal computer networks generally include computer systems called "servers." These systems provide services to other computers in the network such as storage of files, storage, forwarding and routing of messages and the like. 18. "Departmental server" means a server based on four or less microprocessors running in parallel.
19. Computer operating systems are marketed and shipped in interstate commerce. 20. Microsoft is the largest marketer of operating systems for personal computers and networks of personal computers.
21. Computer operating systems marketed by Microsoft compete in numerous relevant product markets. The product markets relevant to this case are as follows:
22. The geographic market for each of the product markets relevant to this case is worldwide and includes the entire United States.
23. Microsoft has monopoly power in the personal computer operating systems market. 24. Microsoft has monopoly power in the technical workstation operating systems market and departmental server operating systems market. These markets are adjacent to the market for personal computer operating systems. 25. Bristol competes against Microsoft in the personal computer operating system market, the departmental server operating systems market, and the technical workstation operating systems market. Bristol competes against Microsoft by providing software that enables users to use UNIX and other operating systems in lieu of variations of the Windows operating system without sacrificing the advantage of using applications programs written to the Windows programming interface.
26. Bristol is informed and believes that Microsoft acquired or maintained its monopolies in each of the relevant markets by unlawful conduct and practices in violation of §2 of the Sherman Act. 27. Microsoft's monopoly power is not based solely on superior skill, efficiency, foresight or fortuity. 28. Microsoft first acquired its market power in personal computer operating system market when it was chosen by International Business Machines Corporation ("IBM") to be the vendor of the operating system for the IBM Personal Computer ("IBM PC") in or about 1985. This original operating system was known as DOS or "Disk Operating System" 29. Microsoft was not the innovator or originator of DOS. Microsoft acquired DOS from a third-party developer, who, in turn, had adapted DOS from the pioneer microcomputer operating system known as CP/M. 30. The IBM PC was an unprecedented success due, in large part, to IBM's preeminent reputation in the computer field and IBM's superlative marketing organization. 31. The initial success of the IBM PC was due in part to the fact that it was a relatively easy matter for other firms to build and sell personal computers that were program-compatible with the IBM PC. Intel, the maker of the microprocessors employed in the IBM PC, was free to sell and did sell third-party OEMs the microprocessors necessary to assure program compatibility, and Microsoft was free to sell, and did sell third-party OEMs copies of DOS ("MS-DOS") which made "PC clones" program-compatible with the IBM PC. As a result, the cost of MS-DOS compatible computers fell substantially, and the population of MS-DOS compatible computers grew very rapidly. 32. The large base of MS-DOS compatible computers created enhanced economic incentive for developers of application programs to design such programs to run under MS-DOS. Microsoft at all times encouraged program developers to write application programs to run under MS-DOS and the successors of MS-DOS, the Windows family of operating systems. 33. The huge installed base of MS-DOS and the resultant library of MS-DOS compatible applications programs created network effects; that is, as more users acquired MS-DOS compatible personal computers and used MS-DOS compatible applications programs, the users of MS-DOS compatible computers and programs enjoyed greater and greater ability to exchange data and link into networks with other users of MS-DOS compatible computers and programs. The desirability, utility, and success of personal computers and MS-DOS compatible applications programs increased as more and more consumers purchased them. 34. In late 1985, Microsoft introduced Windows to supplement MS-DOS by providing a graphic user interface ("GUI") that ran on top of MS-DOS. Windows and MS-DOS were backward compatible with MS-DOS; that is, application programs that had run under MS-DOS would run under MS-DOS and Windows. Windows added to the programming interface for MS-DOS, enabling developers of application programs to use standard services provided in the Windows software. Windows was perceived by users as a replacement operating system. 35. Bristol is informed and believes that when Windows was introduced to the market, Microsoft imposed contractual requirements on its customers that forced customers to purchase MS-DOS and Windows as a package. 36. As a result of its backward compatibility with MS-DOS application programs, Microsoft's marketing practices and the popularity of a graphical user interface, Windows displaced MS-DOS as the dominant operating system for personal computers. More than 90% of personal computers now run under one of the Windows family of operating systems. 37. As a result of the network effects of program compatibility, the market for application programs that will run under one of the Windows family of operating systems is enormous. 38. In order to run under the Windows family of operating systems, an application program must conform precisely to the Windows programming interface which is defined by Microsoft, often in collaboration with third parties. 39. The majority of application program developers write their programs in the first instance to conform with the Windows programming interface. At a later date, such developers may or may not choose to adapt their programs to run on the native programming interface of other operating systems. 40. In order to compete effectively, developers of applications programs compatible with the Windows family of operating systems must know the Windows programming interface and must have advance notice of changes or extensions to that interface. The dependency of application program developers on access to timely information about the Windows programming interface gives Microsoft significant power over developers of applications software. This power can be, and has been, used to influence whether or not application program developers will support operating systems in addition to Windows. 41. Once the MS-DOS operating system became dominant, Microsoft began to exercise the market power it had acquired to suppress operating systems competition. Microsoft has used unlawful tactics for this purpose. For example, Microsoft has withheld information and imposed non disclosure agreements for the purpose of preventing suppliers of alternative operating systems from providing the capability to run application programs initially written for Microsoft operating systems. Microsoft has duplicated functions offered by other vendors to deny such vendors the revenue base and market credibility to compete in the operating systems market. Microsoft has entered into various kinds of restrictive agreements to minimize the opportunity of consumers to consider alternatives to Microsoft operating systems. 42. Since the introduction of Windows NT in 1993, Microsoft has extended its market power into the markets for technical workstations operating systems and departmental server operating systems. Microsoft has used its control of the Windows programming interface for this purpose. 43. There are substantial barriers to entry into each of the relevant markets alleged. G. Bristol's Competition in the Relevant Market 44. Bristol is a small privately-held corporation. Bristol was formed by Keith Blackwell, Jean Blackwell and Ken Blackwell in 1991. 45. Bristol's original and principal product is known as Wind/U. Wind/U is a suite of programs that enable applications programs designed to run on the Windows operating system to be adapted to run efficiently under UNIX, OpenVMS and OS/390 operating systems. 46. Wind/U was developed and introduced by Bristol and achieved consumer acceptance by demanding and sophisticated developers of applications programs. Bristol became one of the fastest growing small companies in the United States. 47. By selling a product that makes it possible for UNIX-based computers to support the needs of users of Windows-compatible applications programs, Bristol became a niche competitor in the personal computer operating systems market, the technical workstation operating systems market, and the departmental server operating systems market. 48. In 1991, after Bristol had publicized its intention to develop a tool to translate programs written to the Windows programming interface to the UNIX programming interface, Microsoft approached Bristol and expressed interest in establishing a business relationship wherein Bristol. After further discussions, Microsoft invited Bristol to become a partner in the Microsoft WISE program. Bristol is informed and believes that the Microsoft goal for this program was to promote market acceptance of Windows NT (and its follow-ons) in the relevant markets herein in issue. 49. In its discussions with Bristol and in statements made to the general public, Microsoft committed to provide WISE partners with continuing access to all Windows source code, details of the Windows programming interface and other data ("compatibility information") necessary to assure that the products offered to consumers by WISE partners would evolve along with future versions of the Windows family of operating systems and assure applications compatibility and performance. 50. In reliance on Microsoft's stated intent and policy, Bristol agreed to become a Microsoft WISE partner in 1994. Under the terms of this agreement, Microsoft licensed Bristol to use Microsoft source code and to include modified copies of certain parts of the Windows code in its Wind/U product. 51. At the time of the WISE agreement, UNIX-based operating systems were dominant in the technical workstation operating systems market and the departmental server operating systems market. Microsoft was beginning to enter these markets with its Windows NT product. As the new entrant, it was advantageous to Microsoft to encourage users of UNIX-compatible computers to utilize and rely on Windows-compatible applications programs because such use and reliance would enhance the long run appeal of Windows NT in the technical workstation operating systems market and the departmental server operating systems market. 52. The WISE agreement between Microsoft and Bristol (and like agreements between Microsoft and other vendors) was beneficial to consumers because it provided consumers with a wider choice of operating systems and applications program alternatives. 53. In reliance on the WISE program, Bristol modified its Wind/U products to use Microsoft source code. 54. In further reliance on the WISE program, Bristol publicized its relationship with (and implicitly, its dependence upon) Microsoft. 55. As a direct and proximate result of Bristol's good faith reliance on the WISE program, Bristol has become technologically dependent upon access to the Microsoft source code and other information to which it is entitled under the WISE agreement. Microsoft at all times knew and intended that Bristol would be "locked in" to dependence upon Microsoft once Bristol entered into the WISE agreement. 56. At all times and in all respects, Bristol performed the WISE agreement in a good, fair and reputable manner. 57. Bristol is informed and believes that by 1997, if not before, Microsoft had acquired monopoly power in the technical workstation operating systems market and the departmental server operating systems market. 58. Commencing at a time unknown to Bristol, Bristol is informed and believes that Microsoft altered its strategy as to the technical workstation operating systems market and the departmental server operating systems market. Bristol is informed and believes that Microsoft concluded that the network effects of its monopoly of the market for personal computer operation systems as well as the acceptance of Windows-family in the technical workstation operating systems market and the departmental server operating systems market had grown and was growing so rapidly that it would no longer be beneficial to Microsoft to facilitate translation of programs written using the Windows programming interface so that they could run on the UNIX programming interface. Accordingly, Microsoft callously decided to restrict Bristol's access to source code. 59. Microsoft did not inform Bristol of its change of strategy, and did not warn Bristol that it would be left without access to the Microsoft source code that had become essential to Bristol's ability to compete in the relevant markets. 60. Bristol is informed and believes that Microsoft deliberately compounded the competitive impact of its decision to change strategy by withholding its true intent from Bristol and by engaging Bristol in an endless and inconclusive round of negotiations. Throughout such negotiations, Microsoft has refused to provide essential source code for new Windows releases and versions on commercially reasonable terms. 61. Bristol is informed and believes that incident to Microsoft's revised WISE policy, Microsoft combined with other firms including competitors of Bristol and independent software vendors ("ISVs"), with the purpose of eliminating Bristol as a competitor in the relevant markers. The purpose and effect of these combinations is to restrain competition in the technical workstation operating systems market and the departmental server operating systems market. 62. Bristol is informed and believes that Mainsoft, Inc., a direct competitor of Bristol, is one of the firms that has combined with Microsoft as above alleged.
63. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62 hereof, as if set out in full. 64. Microsoft's refusal to renew the WISE agreement on commercially reasonable terms was and is an act of monopoly leveraging consisting of a use of Microsoft's market power in the personal computer operating systems market to gain a competitive advantage and secure a monopoly in the technical workstation operating systems market and the departmental server operating systems market. 65. Allowing access to source code to developers of software products suitable for use on different operating systems is an efficient and ordinary business arrangement, of a type into which competitors would naturally enter in competitive market conditions. 66. Microsoft has used its pretended commitment to make Windows source code available to providers of cross-platform development tools (like Bristol) in order to maintain its monopoly of the personal computer operating system, the technical workstation operating systems market and the departmental server operating systems market. 67. Microsoft's refusal to renew the WISE agreement on commercially reasonable terms was and is inherently exclusionary, and constituted an attempt to exclude Bristol and to deter entry by firms offering products like Wind/U on a basis other than efficiency. The purpose and effect of this conduct was to force consumers to purchase Microsoft operating systems. 68. The option to support Windows application programs on UNIX-based systems, either in combination with Windows NT systems or otherwise, is desired by consumers, and would, in the absence of a purpose to monopolize, benefit Microsoft. 69. Microsoft's exclusion of products like Wind/U (or its control over the availability and function of such products for its own ends) forces consumers to accept inferior products overall. 70. The intended purpose and the effect of Microsoft's course of conduct with regard to Bristol is to eliminate competition from UNIX and other non-Windows operating systems in the long run. 71. There is a dangerous probability that if Microsoft is allowed to continue in its efforts to eliminate or control cross-platform software, Microsoft will increase and entrench its existing market power in the personal computer operating systems market. 72. As a direct and proximate result of Microsoft's monopolistic conduct, Bristol has been injured in its business and property. The exact amount of such injury will depend on Bristol's ability to obtain timely and effective injunctive relief. 73. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol is entitled under the WISE agreement, Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power may become further entrenched.
74. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, 64 through 70, and 72 through 73 hereof, as if set out in full. 75. Microsoft's refusal to renew the WISE agreement on commercially reasonable terms was and is a predatory act designed to facilitate consolidation of market power in the technical workstation operating systems market in violation of § 2 of the Sherman Act (15 U.S.C.§2). 76. There is a dangerous probability that if Microsoft is allowed to continue in its efforts to eliminate or control cross platform software, Microsoft will increase and entrench its existing market power in the technical workstation operating systems market.
77. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, 64 through 70, and 72 through 73 hereof, as if set out in full. 78. Microsoft's refusal to renew the WISE agreement on commercially reasonable terms was and is a predatory act designed to facilitate consolidation of market power in the departmental server operating systems market in violation of Section 2 of the Sherman Act (15 U.S.C. §2). 79. There is a dangerous probability that if Microsoft is allowed to continue in its efforts to eliminate or control cross platform software, Microsoft will increase and entrench its existing market power in the departmental server operating systems market.
80. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, and 64 through 73 hereof, as if set out in full. 81. The source code and other information to which Bristol is entitled under the WISE agreement is an essential facility controlled by Microsoft. 82. Access to the source code and other information to which Bristol is entitled under the WISE agreement is essential for Bristol to compete in each of the relevant markets alleged herein. 83. It is impossible, as a practical matter, for Bristol to duplicate the interface and other compatibility information to which Bristol is entitled under the WISE agreement. Such information is developed by Microsoft in collaboration with other firms with which Microsoft collaborates under non disclosure agreements. The content of such information is largely arbitrary in the sense that there are an infinite universe of possible alternatives that Microsoft could elect to use as the protocols and formats of its operating systems. The content of the compatibility information is constantly changing. While it is possible to derive most compatibility information through a laborious process of reverse engineering, the cost of doing so would be prohibitive and the time required too great to permit effective competition. The target would have been moved again by the time the information had been reverse engineered. 84. It is feasible for Microsoft to provide Bristol with access to the essential facility without loss of its intellectual property rights and without impairing its ability to compete on the merits or its incentive to innovate. Indeed, by providing the essential facility to companies like Bristol, the incentive to compete and innovate would be increased 85. Microsoft refuses to provide the full complement of source code and other information to which Bristol is entitled under the WISE agreement, and that information which Microsoft nominally offers to provide is offered only on terms which are tantamount to outright denial. Microsoft's conduct violates § 2 of the Sherman Act (15 U.S.C. §2).
86. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62 and 64 through 70 hereof, as if set out in full. 87. Microsoft has engaged in the course of conduct above alleged with the specific intent of acquiring a monopoly of the technical workstation operating systems market. 88. There is a dangerous probability that the Microsoft course of conduct above alleged will result in a monopoly of the technical workstation operating systems market. 89. As a direct and proximate result of Microsoft's attempt to monopolize, above alleged, Bristol has been injured in its business and property. The exact amount of such injury will depend on Bristol's ability to obtain timely and effective injunctive relief. 90. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law and Microsoft's monopoly power will become further entrenched.
91. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62 and 64 through 70 hereof, as if set out in full. 92. Microsoft has engaged in the course of conduct above alleged with the specific intent of acquiring a monopoly of the departmental server operating systems market. 93. There is a dangerous probability that the Microsoft course of conduct above alleged will result in a monopoly of the departmental server operating systems market. 94. As a direct and proximate result of Microsoft's attempt to monopolize, above alleged, Bristol has been injured in its business and property. The exact amount of such injury will depend on Bristol's ability to obtain timely and effective injunctive relief. 95. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power will become further entrenched.
96. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62 and 64 through 73, as if set out in full. 97. The conduct of Microsoft as alleged herein constitutes monopolization in violation of Conn. General Stats. §35-27. 98. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power will become further entrenched. Bristol is entitled to equitable relief. Conn. General Stats. §37-34.
99. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, 64 through 70, and 72 through 73 hereof, as if set out in full. 100. The conduct of Microsoft as alleged herein constitutes monopolization in violation of Conn. General Stats. §35-27. 101. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power will become further entrenched. Bristol is entitled to equitable relief. Conn. General Stats. §37-34.
102. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, 64 through 70 and 72 through 73, as if set out in full. 103. The conduct of Microsoft as alleged herein constitutes monopolization in violation of Conn. General Stats. §35-27. 104. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power will become further entrenched. Bristol is entitled to equitable relief. Conn. General Stats. §37-34.
105. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, 64 through 73, and 81 through 85 hereof, as if set out in full. 106. The conduct of Microsoft as alleged herein constitutes monopolization in violation of Conn. General Stats. §35-27. 107. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power will become further entrenched. Bristol is entitled to equitable relief. Conn. General Stats. §37-34.
108. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, 64 through 70, and 87 through 89, as if set out in full. 109. The conduct of Microsoft as alleged herein constitutes attempted monopolization in violation of Conn. General Stats. §35-27. 110. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power will become further entrenched. Bristol is entitled to equitable relief. Conn. General Stats. §37-34.
111. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62, 64 through 70, and 92 through 94 hereof, as if set out in full. 112. The conduct of Microsoft as alleged herein constitutes attempted monopolization in violation of Conn. General Stats. §35-27. 113. Unless Microsoft is quickly ordered to provide the compatibility information to which Bristol will suffer irreparable injury for which it has no adequate remedy at law, and Microsoft's monopoly power will become further entrenched. Bristol is entitled to equitable relief. Conn. General Stats. §37-34.
114. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62 and 64 through 72 hereof, as if set out in full. 115. Microsoft's refusal to renew the WISE agreement on commercially reasonable terms was and is an unfair trade practice designed to facilitate consolidation of power in markets alleged herein. 116. Microsoft's representations to ISVs that Microsoft would continue to license its source code in order to induce ISVs to switch to writing software using Windows programming interface was and is an unfair trade practice designed to reduce the number of applications available for non-Microsoft computer operating systems. 117. Microsoft's representations to users of the UNIX operating system and other operating systems that Microsoft was making a long-term commitment to licensing Windows source code so that UNIX users and the users of other systems would have to access to and ongoing support of Windows applications on the UNIX platform and other platforms was and is an unfair trade practice designed to create reliance on Windows applications programs to consolidate Microsoft's market power in markets alleged herein. 118. Microsoft has engaged in other unfair practices, including, but not limited to, those alleged in ¶ 41, to the detriment of Bristol and the public. 119. Microsoft's practices are an offense to public policy in violation of Conn. General Stats. §42-110(a-q). 120. Microsoft's practices cause substantial injury to consumers and competitors due to increased prices, decreased innovation, fewer product choices and reduced interbrand competition.
121. Bristol realleges and incorporates herein by reference each and every allegation contained in ¶¶ 1 through 62 and 64 through 72 hereof, as if set out in full. 122. Through the WISE program and communications with Bristol relating thereto, Microsoft by its acts and words represented to Bristol that Microsoft would continue to make available to Bristol the source code and other materials contemplated by the WISE agreement. 123. Bristol reasonably relied and acted on the truth and accuracy of the representation that Microsoft would continue to make available to Bristol the source code and other materials contemplated by the WISE agreement. 124. In reasonable reliance on the representations of Microsoft, Bristol changed its position and became dependent upon Microsoft to continue to supply the information it agreed to provide under the terms of the WISE agreement. 125. As a result of the foregoing, Microsoft is estopped to refuse to continue to make available to Bristol on commercially reasonable terms the source code and other materials contemplated by the WISE agreement. 126. As a direct and proximate result of Microsoft's failure to make good on the representation that it would continue to make available to Bristol the source code and other materials contemplated by the WISE agreement, Bristol has been damaged in its business and property. The exact amount of such damage will depend on Bristol's ability to obtain timely and effective injunctive relief. Bristol will seek leave of Court to amend this complaint to set forth the full extent of its damage with the same has been ascertained. 127. Bristol is entitled to injunctive relief to compel Microsoft to honor and perform in accordance with its representations. WHEREFORE, Bristol prays for judgment as follows: 1. Under the First through Sixth Claims for Relief:
2. Under the Seventh through Twelfth Claims for Relief:
3. Under the Thirteenth Claim for Relief
4. Under the Fourteenth Claim for Relief:
5. Under all claims for relief:
DATED: August 18, 1998
DEMAND FOR JURY TRIAL Bristol Technology, Inc. hereby demands trial by jury of all issues so triable. DATED: August 18, 1998
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