Full opinion text
RULING ON BRISTOL TECHNOLOGY’S MOTION FOR AWARD OF PUNITIVE DAMAGES [DKT. NO. 433] & MOTION FOR PERMANENT INJUNCTION [DKT. NO. 431] HALL, District Judge. Bristol Technology, Inc. (“Bristol”) commenced this action against Microsoft Corp. (“Microsoft”) on August 18, 1998. Its fourteen-count complaint alleged federal and state antitrust claims and other state statutory and common law claims, including violations of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. § 42-110a et seq. Bristol also filed a Motion for Preliminary Injunction. After several scheduling conferences and issuance of a preliminary discovery schedule, the court held a four-day evidentiary hearing on that motion in October 1998. In its memorandum of decision dated December 30, 1998, the court denied Bristol’s Motion for Preliminary Injunction, but set the case down for trial in June 1999. On July 16, 1999, after a six-week trial, the jury found Microsoft had committed a deceptive act or practice in violation of CUTPA. The jury awarded Bristol one dollar in compensatory damages on this count. Bristol now seeks the entry of additional relief, in the form of punitive damages and a permanent injunction under CUTPA. For the following reasons, Bristol’s motion for punitive damages is granted and its motion for injunctive relief is granted in part and denied in part. I. BACKGROUND Microsoft is the owner and distributor of computer operating systems, including Windows, Windows 95, Windows 98, Windows for Workgroups, and Windows NT. A computer operating system controls the basic functions of the computer hardware. It also facilitates interaction between the hardware and application programs. Application programs, such as word processing and spread sheet programs, give the computer its functionality by providing the computer with instructions for the performance of a task. To run, an application program must be able to present commands and respond to the operating system in precisely the format and according to the precise protocols used by that operating system. Therefore, independent software vendors (“ISVs”) must write their application programs to be compatible with the operating system’s application programming interfaces (“APIs”). Because different operating systems have different protocols and APIs, application programs written for one operating system usually must be rewritten to work on another operating system. Microsoft has developed operating systems for personal computers, technical workstations and departmental servers. A technical workstation (“workstation”) is a microprocessor-based machine typically used for highly computational, technical applications. A departmental server (“server”) is a microprocessor-based machine that is used to provide or manage common services and functions for other computers that are linked together in a small to medium-sized network. Beginning in the 1980s with the development of MS/DOS, Microsoft has produced operating systems that now comprise more than 90% of the personal computer operating system market. In 1993, Microsoft entered the departmental server and technical workstation operating systems markets with the introduction of Windows NT (“NT”). In each of those markets, Microsoft’s share has grown dramatically. Microsoft’s share of the market in new NT operating system units, including servers and workstations, grew from a fraction of 1% in 1998 to 4.2% in 1994, almost 20% in 1995, 28% in 1996, and up to almost 44% in 1997. On departmental servers alone, Microsoft’s share of the market in new operating system units grew from almost 21% in 1995 to 29% in 1996 and to 45% in 1997. Bristol was formed in 1991 by several members of the Blackwell family. Its business plan was to develop a cross-platform product which, when installed on a UNIX-based operating system, would run application programs written for the Windows operating system. Bristol eventually developed such a program, called “Wind/U,” by reverse engineering the Windows operating systems to obtain the necessary source code. After it began marketing Wind/U, Bristol was contacted by Microsoft, which offered to help improve the product by providing Bristol with access to source code for the current and soon-to-be-released product versions of Windows operating systems. Microsoft and Bristol eventually entered into a contract, dated September 21, 1994 (“1994 WISE Agreement”), which contract was part of what Microsoft called the “WISE Program,” a licensing program from Microsoft designed to enable ISVs to translate or run Windows applications on UNIX and Macintosh systems. The WISE Program had been announced by Microsoft earlier in 1994. Microsoft began creating the program which it eventually called WISE at a time when makers of UNIX-based operating systems had sizeable shares of the server and workstation markets and Microsoft had nearly none. Microsoft contracted with Bristol and others, including MainSoft Corporation, through the WISE Program in order to encourage ISVs to write cross-platform applications on Windows NT 3 (“NT 3”). The 1994 WISE Agreement licensed source code of certain Microsoft operating systems to Bristol to use in developing its cross-platform product, which products are generally known as “Wind/U.” The 1994 WISE Agreement expired on September 21, 1997, although, under the terms of the 1994 WISE Agreement, Bristol was entitled to continue using source code provided to it before that date, with the continuing obligation to pay royalties on the use of that code. The scope of the 1994 WISE Agreement is a subject of dispute between the parties. This Agreement describes the source code licensed under it as including Windows 3.1 and Windows NT 3.5, and “any Version Releases and Update Releases” thereto during the three-year term of the 1994 WISE Agreement. 1994 WISE Agreement at ¶ l(w)(iv). “Version release” and “update release” were defined in the contract as a change in the product designation number to the right of the decimal period, in the tenths and hundredths digits respectively. For example, a version release of Windows 3.1 would be designated as Windows 3.2, whereas an update release would then be designated as Windows 3.21. “Product releases” were defined in the Agreement as any Windows and NT products with a 3 to the left of the decimal point. Id. at ¶ l(q). For example, if the current product release were designated as Windows 3.1, then a new product release would be designated as Windows 4.0. Thus, Microsoft argues that Windows NT 4 (“NT 4”) was not covered by the 1994 Agreement. However, Bristol argues that it is covered because Microsoft made numerous representations to the effect that NT 4 would be licensed to Bristol. Negotiations between Microsoft and Bristol on a new licensing agreement to replace the 1994 WISE Agreement when it expired on September 21, 1997 began at least as early as 1996. The negotiations were unsuccessful, and Bristol brought suit. Microsoft then signed a licensing agreement with Bristol’s main competitor, MainSoft, on August 25, 1998 (“1998 Main-Soft Agreement”). After Bristol failed to prevail on its antitrust claims in this action, Bristol signed the MainSoft version of the licensing agreement with Microsoft on August 2, 1999 (“1999 Agreement”). Both the 1998 MainSoft Agreement and Bristol’s 1999 Agreement prohibit MainSoft and Bristol from revealing the terms and conditions of their new WISE agreements, including the fact that the agreements provide only a subset of the Windows NT 4 Workstation and NT 5 Workstation technologies in source code form. 1999 Agreement at ¶¶ 1(d), 2(a)-(g), 8(c), 19(a); 1998 MainSoft Agreement at ¶¶ 1(d), 2(a)-(g), 8(c), 19(a). II. MOTION FOR PUNITIVE DAMAGES A. Introduction In the first motion, Bristol requests “entry of an award of punitive damages in an amount sufficient to punish Microsoft for its deceptive practices with respect to the WISE program and to deter similar conduct by Microsoft and others in the future.” Bristol Technology’s Motion for Award of Punitive Damages (Docket No. 433) at 1. Bristol claims that it is entitled to a substantial award of punitive damages based on Microsoft’s recklessly or wantonly deceptive behavior in violation of CUT-PA. Bristol argues the record demonstrates that Microsoft was reckless, at the very least, with regard to the accuracy of its representations regarding the WISE Program. Id. at 4. Bristol claims that, regardless of whether Microsoft’s representations concerning the openness of the Win 32 APIs were false when first made in 1994, they became deceptive in 1997 when Microsoft decided to exclude certain server technologies from the WISE Program. Id. at 5. Further, Bristol claims that Microsoft also did not modify or retract any of the statements about the openness of its APIs through the WISE Program that Microsoft continued to proliferate through the WISE Program “White Paper” or Mission Statement (“PX 1”). Instead, Microsoft prohibited Bristol’s competitor and fellow WISE contractor, MainSoft, from publicly disclosing the technology restrictions Microsoft had placed on the WISE contractors in the 1998 Mainsoft Agreement. Id. at 5-6. Bristol claims that Microsoft aggressively promoted WISE as an “open standard,” a complete solution for Java and other rival technologies through, inter alia, publication of PX 1 on its website, up through the end of trial in July 1999. Id. at 6. Bristol further asserts that Microsoft, with its dramatic market share growth and the significant increase in the number of applications for Windows NT, no longer believes it is necessary to provide a “bridge” back to UNIX for ISVs. Because the cross-platform tools developed by Bristol and Microsoft’s other WISE Program partners rely on Windows source code, Microsoft is able to control what functions can be “ported,” or translated, between the systems by limiting access to the relevant source code for new product releases of Windows operating systems. Microsoft argues that its relationship with Bristol is defined by its 1994 WISE Agreement, which contained integration and no-oral-modification clauses, thus militating against a finding of reckless, wanton, or wilful deception by Microsoft toward Bristol. Microsoft’s Memo, in Opp. (Docket No. 435) at 10. However, the terms of the contract between Bristol and Microsoft are irrelevant to the court’s analysis of whether Microsoft acted recklessly or wantonly in, as the jury found, engaging in a deceptive act or practice. Microsoft in essence argues that the contract released it from conduct in which it had not yet engaged. The court cannot agree. The court does agree with Microsoft’s assertion that Bristol knew that it needed to negotiate a new contract to obtain new Microsoft source code after September 1997. Id. However, the court does not agree with Microsoft’s assertion that Bristol knew prior to the expiration of its 1994 WISE Agreement in September 1997 that the terms of that agreement, which provides Bristol access to all source code of covered operating systems, would be substantially changed in a subsequent agreement. B. Findings of Fact The court presided over the preliminary injunction hearing and trial of Bristol’s claims to the jury. The court has also reviewed in connection with the present motions the trial transcripts and exhibits, and now makes the following findings of fact for purposes of deciding Bristol’s Motion for Punitive Damages. On the basis of the following findings of fact, the court finds that the deceptive conduct engaged in by Microsoft clearly rises to the level of reckless and wanton indifference to the harm it caused Bristol and others, including ISVs, that relied on Microsoft’s assurances regarding the viability of products under the WISE Program to allow porting of applications written for Microsoft’s latest NT source code. As discussed below, the court will therefore exercise its discretion to award punitive damages under CUTPA. 1. Launching and promoting the WISE Program In 1994, Microsoft launched the WISE Program to allow customers to integrate Windows-based solutions with UNIX and Macintosh systems. The technology developed in the WISE Program allowed application developers to write software to Windows APIs and run the resulting applications on Macintosh and UNIX systems. The technology would thereby enable developers to write to a standard set of APIs and then run the application across any Windows, UNIX, or Macintosh platform, hence the term “cross-platforming.” See generally PX 1 at 2-3. Microsoft issued the WISE Program Mission Statement in January 1995. PX 1. Microsoft distributed this document through a number of channels, including its website and through the Microsoft Developers Network (“MSDN”) and Visual C + + , both of which are tools designed to enable ISVs and developers to more easily write applications for the Windows platform. In this document, Microsoft represented to interested developers and ISVs the benefits of the WISE Program to allow them to write software that could run across various platforms. Corporate users of software written using WISE technology benefitted from requiring only one application that could run on the variety of platforms these users often employ within their computer systems. According to PX 1, WISE Program products by companies such as MainSoft and Bristol help management information systems (“MIS”) managers reduce costs for software development, maintenance, and training. For developers, the WISE Program provided the opportunity to access technologies in UNIX, Windows, and Macintosh platforms while writing to a consistent set of Windows APIs. See generally id. at 6-9. For Microsoft, the WISE Program provided a wide variety of competitive benefits. Microsoft was facing pressure within the software community to develop a public interface for Windows, or “PWI.” On April 11, 1994, Microsoft issued an open letter (“Open Letter”) from then-Microsoft Director of Systems Marketing and Standards, Bob Kruger, in which letter Microsoft represented to developers and ISVs that the WISE Program would make Windows APIs “universally available” for Intel x86 and UNIX platforms and “ensure” that customers of Microsoft and its WISE Program partners can use the Windows 32 technologies in their operating systems and application development. Microsoft was then fending off threats to Windows’s status as the dominant operating system for personal computers, while simultaneously attempting to obtain a significant market share in server and workstation technologies. So-called “open code” and “open standards” such as Linux were being developed, and Microsoft pitched the WISE Program as its solution to the call for an “open system.” In essence, Microsoft pushed the cross-platforming available under the WISE Program as the sensible alternative to languages such as Java that were being represented as capable of running across UNIX and Windows platforms. On March 22, 1994, Microsoft issued a press release (“Press Release”) touting the benefits of the WISE Program, under which “Microsoft will license source code for the Microsoft® Windows operating system to independent software vendors (ISVs), thus allowing Windows-based applications now to run on all major implementations of the UNIX operating system.” According to the Press Release, the WISE Program “agreements, signed with Locus Computing Corporation, MainSoft Corporation and Insignia Solutions, Inc., makes the Windows APIs a universal standard for both the Intel x86 and RISC-based UNIX platforms and help ensure that customers can take advantage of evolving 32-bit Windows technology in both their operating systems and application development.” Through the Press Release and the Open Letter, Microsoft sent a targeted message to developers, ISVs, and MIS managers that the WISE Program made Windows in essence an open and universal standard. According to PX 1, the WISE Program offered three major benefits to MIS managers: “Compatibility, Consistency, and Confidence.” WISE products offered Microsoft customers “compatibility” through the ability to use a PC-like environment on Macintosh and UNIX systems, to use shrink-wrapped Windows-based applications on UNIX and Macintosh systems, and to allow developers to write programs to Windows APIs that will run across a variety of platforms. PX 1 at 4. Microsoft maintained that the WISE Program offered MIS managers “consistency” by eliminating the need to purchase non-Windows applications and software to run existing and future applications. Id. Most important for this discussion, Microsoft promised “confidence” in the continuing benefits of the WISE Program to MIS managers: Companies can adopt a solution that will evolve along with future versions of the Windows family, taking full advantage of evolving 32-bit technology. Microsoft is committed to providing WISE licensees with future versions of Windows family source code, thereby continuing to maximize application compatibility and performance for today’s and tomorrow’s applications. Customers can be confident that their investments today will continue to realize benefits well into the future. Id. at 4-5 (emphasis added). The WISE Mission Statement (PX 1) makes no reference to the three-year term of various licensing agreements under the WISE Program. Microsoft also asserted in PX 1 that WISE benefits MIS managers by “Reducing Client/Server Migration Costs.” Id. at 5. Suggesting that WISE software will support server operating system needs, Microsoft touted that, “[w]ith WISE, MIS professionals can migrate mainframe software once to Windows and use WISE to run the migrated software on UNIX and Macintosh systems.” Id. According to PX 1, “MISs can choose the target platforms for migration independent of the issue involved in the software migration,” such that an MIS team without much UNIX system expertise can choose to downsize to UNIX platforms by downsizing software to Windows and using WISE to run the software on the UNIX platforms.” Id. From almost the beginning of the WISE Program, then, Microsoft told its current and potential customers that the WISE Program worked and would continue to work because Microsoft had and would provide its WISE Program partners, such as Bristol and MainSoft, with the Windows source code required to allow WISE Program technology to “maximize application compatibility ... well into the future.” Id. at 4-5. Microsoft implemented the WISE Program to meet the competitive challenges posed by UNIX-based rivals such as Sun Microsystems Inc., the development and projected capabilities of technologies such as WABI and languages such as Java, and the PWI movement in favor of transforming Windows APIs to open source code languages. It is important to note that the court is not making any finding that Microsoft acted illegally by creating the WISE Program for its advantage in an attempt to defeat its competitive rivals in the workstation and server operating systems market. Moreover, the court accepts for the most part Kruger’s testimony that Microsoft’s statements in the Press Release, the Open Letter, and PX 1 were not false nor intended to be false or misleading at the time those documents were issued. Rather, as discussed below, it is the use of deceptive practices in the course of carrying out this business decision that violates CUTPA. Through the WISE Program, Microsoft conveyed the message that applications written for Windows could be easily made available to UNIX users by translating, or porting, those applications using a WISE product, such as Bristol’s Wind/U. This meant that an application developer (“developer”), both within corporations writing applications for internal use and within software companies, who chose to write Windows applications, would be able to take advantage of the emerging Windows server and workstation operating system markets while maintaining its position as an application developer for UNIX systems. In essence, WISE Program software such as Wind/U would provide a “bridge” back to UNIX for ISVs and developers who chose to start writing to Windows APIs but also wanted their applications to run on UNIX and/or Macintosh platforms. This “bridge” represented a significant savings in time and resources for ISVs and developers that wanted their applications to run on both Windows and other platforms. ISVs and developers face significant costs if they must rewrite an application in another language. Estimates place the savings from simply porting an application to another platform at 80% to 90% of the time required to rewrite the program. Of course, conversely, if an ISV or developer writes an application to Windows APIs but later learns that the cross-platforming software will not port the application to other platforms, the ISV or developer will face the unexpected costs in time and resources of rewriting the application for the other platforms, or will lose that market for its applications. Microsoft’s purpose in entering into the WISE Agreements was clearly to convert UNIX ISVs to writing their applications to Windows NT, and thereby convert UNIX users to NT. Microsoft understood that ISVs and developers write to the operating system that most of their target customers use. At the time Microsoft developed and launched the WISE Program, NT 3 had a very small share of the operating system market for technical workstations and departmental servers since the introduction of the first versions of Windows NT in July 1993. Microsoft shrewdly played to the follow-the-dominant-platform mentality of ISVs and developers by offering them the opportunity to write to NT as Microsoft forecasted it would soon gain a significantly greater market share (as it had in the PC market) and yet still write for (but not write to) UNIX-based platforms through the “bridge” from Windows to UNIX offered by the WISE Program. The WISE Program basically allowed Microsoft to promise long-term rewards with minimal short-term costs or lost opportunities for writing applications to NT APIs instead of to UNIX APIs. Microsoft’s message to corporate management information systems (“MIS”) managers was similar. The WISE Program offered them the opportunity to use only the Windows platform for workstations, servers and personal computers without giving up the use of their existing resources on UNIX-based and other platforms. Overall, Microsoft used the WISE Program as part of an effort to gain converts away from UNIX by offering them all of the APIs the Windows NT operating system offered and would offer, without giving up the use of applications on the then-dominant UNIX operating system. In 1994, this strategy was a rational approach for Microsoft in light of its relative market share and technologies. NT 3 offered few, if any, APIs that UNIX did not provide, and UNIX was a considerably better-selling operating system than the earliest versions of NT. During the course of 1995 and into 1996, Microsoft continued to promote the WISE Program through the proliferation of PX 1 on its website, through its inclusion in software shipments such as Visual C + +, and in the MSDN. Through PX 1, Microsoft continuously represented to ISVs and developers that they could rely on the ability to port applications written for Windows APIs to UNIX and Macintosh platforms through the technology developed and sold through the WISE Program. When asked, Microsoft assured its customers that they could count on the WISE Program continuing to provide portability of Windows applications to UNIX and Macintosh. Indeed, Microsoft senior vice-president Jim Allchin, who runs the Windows division at Microsoft, testified that Microsoft would intend for ISVs, developers, and other customers to rely on the assurances in PX 1 as late as April 1999, when PX 1 was still posted on Microsoft’s website and being distributed with software and the MSDN. Specifically, Allchin testified that a developer using Visual C++ should have, from Microsoft’s point of view, relied on PX l’s assurances that a user of Windows APIs could easily port applications to run on a UNIX platform. The court finds that the record reflects that Microsoft users did in fact rely on the WISE program to implement cross-platforming in their operating directories and application development. By mid-1998, Bristol’s Wind/U customer list alone included approximately 300 companies, while MainSoft had approximately 150 developers using its WISE product, MainWin, by mid-1997. Bristol also had, before its dispute with Microsoft became known, a realistic likelihood of substantial sales of its runtime product. 2. Microsoft’s growing doubts about, and shifting position on, the WISE Program Amidst this public display of “confidence” and continuous support for the WISE Program, however, doubts surfaced and spread within Microsoft about the wisdom of continuing the WISE program in its full scope, i.e., providing full NT source code to its WISE Program partners and thereby allowing the full portability of all Windows APIs to other platforms. Indeed, as early as May 1996, Microsoft’s internal communications reflect CEO and then-President William Gates’s concern about “losing the franchise.” Gates and others worried that, by providing all of the evolving Windows source code to Microsoft’s WISE Program partners, whose software then allows the use of all of Windows applications and functions on UNIX and Macintosh platforms, Microsoft would essentially allow users to continue to operate in non-Windows platforms with the benefit of the Windows APIs. The WISE Program, according to this growing view, would hurt rather than advance Microsoft’s goal of converting former and potential UNIX operating system users to use of the Windows NT operating system. One e-mail thread includes this concise summary of the “losing the franchise” concern: “The risk of going cross-platform with our server technology, of course, is that we might undermine the market for NT by providing most of its features on UNIX (and MVS).” Gates and other senior executives at Microsoft thus worried that, if NT 4 and NT 5’s unique technologies could be ported to UNIX, potential UNIX converts would never buy the latest versions of the NT operating system because they would, in effect, already have all the same capabilities on UNIX. However serious the “losing the franchise” concern may have been with regard to NT APIs, in 1996 Microsoft believed it had nothing to fear with regard to NT 4 and NT 5 under its existing WISE Agreements. Microsoft read its agreements with Bristol and MainSoft to entitle these WISE Program partners to Windows 95 and NT 3.x source code only. Indeed, this is the position that Microsoft maintains to this day in its counter-claim litigation pending before this court. By May 1996, executives of Microsoft were aware of the shipments of NT 4 source code it sent, in its hindsight view, “in error,” to Bristol and MainSoft, but maintained that they had no rights to this code under their WISE agreements. At the same time, with the introduction of NT 4, Microsoft recognized that its position in the server market was growing stronger and, with the then-expected release of NT 5 in 1999, would grow even stronger. In fact, Gates publicly acknowledged that NT had passed a “critical stage” in sales by year-end 1995. PX 10. Having done so, the WISE Program as a tool to defeat UNIX was becoming less of a benefit and more of a potential detriment. As early as February 1996, proposals within Microsoft suggested providing its WISE Program partners with only a subset of NT source code. By June 1996, discussions within Microsoft had turned to converting Microsoft’s position toward the WISE Program from full support to “strategic cross-platform server infrastructure and application needs.” PX 713. Under this developing view, Microsoft would support the cross-platforming of Windows NT APIs so long as doing so helped it to enter larger segments of the server market and capture more market share, but would exclude an NT technology from cross-platforming where allowing its use on UNIX platforms would risk losing potential NT operating system purchasers and users to competitors. In practice, this would mean restricting the NT source code that Microsoft provided to its WISE Program partners for development of cross-platforming software tools. 3. Gates’ UNIX Expo Speech In the midst of Microsoft’s beginning doubts about the continued direction, scope and viability of the WISE Program, NT 4 beta versions were made available, prior to the market release of the NT 4 operating system, to selected ISVs and developers in February 1996. NT 4 went on the market in July 1996. Throughout this period, Microsoft continued to distribute PX 1 unmodified, with all its assurances to ISVs, developers, and MIS managers, through its website, products, and the MSDN. The court finds that this continued distribution constitutes affirmative representations by Microsoft. Then, on October 9, 1996, Gates gave a keynote address to hundreds of UNIX operating system developers, sellers, and users at the UNIX Expo. Gates began by stating very clearly Microsoft’s interest in his audience: And through Windows NT, you can see it throughout the design. In a weak sense, it is a form of UNIX. There are so many of the design decisions that have been influenced by that environment. And that’s no accident. I mean, we knew that UNIX operability would be very important and we knew that the largest body of programmers that we’d want to draw on in building Windows NT applications would certainly come from the UNIX base. PX 10. Gates then described the success of Windows NT, including its server technologies, up to that point: Windows NT probably about a year age passed that critical stage, and so the sales today are very large even by the standards of, say, Windows 95, which is the best-selling operating system. The sales have more than doubled all UNIX servers combined. Here I’m just talking about the server. It’s quite a bit more than Netware 4.X, but even more important is to look at the leading indicator. The leading indicator for an operating system is always what are software developers doing? Are they adopting it as their new platform and are they doing more than just porting their applications to the platform? They’re doing the neat work that takes advantage of that platform. And so we have lots of server applications being moved over. Id. Finally, in line with Microsoft’s original goal of converting UNIX users to Windows NT through the WISE Program, Gates then pitched the WISE Program to this key audience: Now, as we recognize that large UNIX space that’s out there, there’s a lot of things we’ve done to make these things fit together. First is this idea of taking a Windows application and running it on UNIX. And we have three partnerships that fit into this: Wyse [sic] provides the Windows interface source environment, and we work together with them to make sure they’ve got the very latest Windows. API- technology. Bristol and Mainsoft also provide source and binary compatibility, and again that’s a close relationship where it’s not just some old version of Windows, it’s the very latest. Id. Gates’s keynote address was delivered to persuade UNIX-based programmers to feel comfortable writing to Windows APIs by trusting the viability and comprehensive scope of the source code provided to Microsoft’s partners in the WISE Program. Bristol was bolstered by Gates’s keynote address and the publicity that accompanied his mention of the WISE Program and Bristol. Bristol found that its customers liked hearing Gates say Bristol had a good product and that Microsoft had a commitment to Bristol and the WISE Program. At the end of 1996, Bristol was experiencing growing revenues through its participation in the WISE Program and expected 1997 to be an even better year. 4. Microsoft’s decisive change in position on the WISE Program Within a few months of Gates’s keynote address, however, Microsoft had clearly decided to cut back the scope of the WISE Program by deciding to provide Bristol and MainSoft with only limited subsets of the latest NT source code. Gates sent an e-mail to Allchin on February 19, 1997 in which he articulated a shift away from a focus on the WISE Program specifically, and a cross-platforming clone strategy more generally, in Microsoft’s competitive battle with Netscape over web browser technology. PX 701. MainSoft’s WISE Agreement expired a month later, on March 2, 1997. In May 1997, Neault indicated in an e-mail sent to one of Microsoft’s representatives in negotiations with Bristol that he expected that Microsoft might license NT 4.x source code in a new WISE agreement with Bristol but “NT 5 is out of the question.” In July 1997, Microsoft proposed a new WISE Agreement to Bristol that would include limited rights to NT 4.x source code, but not NT 5. In August, however, Microsoft decided to delay any future negotiations of a new WISE agreement with Bristol pending the outcome of internal discussions regarding the future of the WISE program. Bristol’s WISE Agreement then expired on September 21, 1997. By October 1997, Microsoft had decided to restrict the NT 4.x source code provided to MainSoft under a new WISE Agreement to a limited subset that would not include much of the server technologies. Allchin sent an e-mail to Gates and Maritz on October 24, 1997, openly acknowledging that Microsoft’s strategy toward UNIX and cross-platforming has changed over time and acknowledging that Microsoft was not on a course to facilitate a clone of NT on UNIX and so should not be porting the NT 4 server technologies to UNIX. The effects of this decision on the ISVs who had come to count on the WISE Program in their decision to begin using and writing to Windows NT was not lost on Microsoft. Gates and other executives at Microsoft had acknowledged to one another at least as early as August 1997 that ISVs who wrote applications to the then-available NT 4 APIs without realizing that the WISE Program software would not port all NT 4.x APIS to UNIX and Macintosh, due to the limited subset of NT 4.x code provided to Bristol and MainSoft, would be, as Gates less than eloquently put it, “just f* * * * PX 674. By the end of October 1997, a review of internal Microsoft communications demonstrates that Microsoft’s clear strategy was to use the WISE Program only to strategically compete with UNIX and Netscape, without allowing the WISE Program to be used in ways that would encourage ISVs and developers to stay on UNIX. The result of this strategy for Bristol, however, was detrimental to the continued success of its Wind/U products. As at least one Microsoft employee involved in the internal discussion in mid-1996 recognized, Bristol and MainSoft would “face damage to their businesses from customers unwilling to commit to a technology for which [Bristol and MainSoft] do not have a long-term license.” PXS10. 5. Microsoft’s counter-arguments are unpersuasive Microsoft offers several counter-arguments to resist a finding of reckless or intentional behavior. However, the court finds these arguments unpersuasive. First, the court rejects Microsoft’s argument that the position it adopted in negotiating a new WISE agreement with Bristol in 1997 and 1998 “was a reasonable attempt to continue the WISE Program at the royalty levels Bristol and MainSoft desired.” Microsoft’s Memo, in Opp. (Docket No. 436) at 11. The court finds that Microsoft did not offer the full NT 4 and NT 5 source code at a higher price. Through the testimony of Maritz, Neault, and Microsoft business development manager Takeshi Numoto, Microsoft essentially claims that it never intended to withhold all of the NT 4 or NT 5 source code from Bristol: it merely expected Bristol to pay a premium royalty for the entire source code, which Microsoft’s witnesses claimed they conveyed to Bristol executives at an April 1998 meeting. The court does not find that Microsoft ever made such an offer. The court views this testimony as an attempt to evade a finding of illegal deception, by suggesting that Microsoft was willing to license all NT source code, albeit at an increased price. The court does not, in short, believe Microsoft’s witnesses on this issue.- Rather, the court finds that Microsoft decided in 1997 not to include the NT 4 and NT 5 server technologies with the source code provided under its WISE agreements. Microsoft instead decided only to offer an “apple core” in order to prevent the arbitrage of its NT 4 and NT 5 operating systems onto UNIX. Microsoft maintained this position in negotiating new WISE agreements with MainSoft and then Bristol in 1998 and 1999. The 1998 Main-Soft and 1999 Bristol WISE agreements do not state outright that the NT 4 and NT 5 server technologies will not be provided under the agreements, but simply do not include the source code necessary for porting NT 4 and NT 5 server technologies. Second, the court rejects Microsoft’s attempt to impugn Bristol’s motive as a “we sue Microsoft for money business plan.” See Microsoft’s Memo, in Opp. (Docket No. 435) at 10-11 n.7. The court does not find that Bristol brought suit as its business plan. Rather, the court finds that Bristol was, in DX 1260 for example, realistically exploring the situation and the consequences of bringing suit. In light of the testimony on it, the court reads this e-mail from Bristol’s outside director to Bristol’s key executives as indicating the extreme burdens which litigation against Microsoft would place on its business, such that, after a point, the litigation will inevitably become Bristol’s “business plan” because Bristol would have little time or money for its business of making computer products. In other words, Bristol’s business simply could not be expected to continue with “business as usual” if it was going to engage Microsoft in a courtroom battle. Based on the evidence in the record, the court finds that Bristol was merely considering the consequences of taking on a cash-rich, sophisticated, large corporation in court. Further, Microsoft argues that the jury’s finding that it did not engage in an unfair act or practice controls the question before the court on punitive damages. Microsoft argues that the jury’s failure to find any of its acts “unfair” somehow prevents an award of punitive damages, despite the fact that the jury did find Microsoft engaged in a deceptive act or practice. See Microsoft Memo. In Opp. (Docket No. 435) at 7. Microsoft equates a finding of no unfairness with a finding of no recklessness. The court does not agree. The jury was charged that, to find an unfair act or practice, they should consider three criteria and that an act could be unlawful “because of the degree to which it meets one of the criteria or because, to a lesser degree, it meets all three.” Jury Charge (Docket No. 419) at 67. The jury could have viewed Microsoft’s behavior as reckless, for example, but found that the behavior was not “unfair” because Bristol did not provide sufficient evidence to adequately support one or more of the prongs of the “cigarette rule.” See Id. at 63-68; Special Verdict Form (Docket No. 420) at ¶ 35. In short, the jury’s failure to find Microsoft’s conduct “unfair” under CUT-PA does not preclude a finding that its deceptive practice was wilful, reckless, or wanton. Moreover, contrary to Microsoft’s repeated suggestions throughout its briefs, the jury did not find that Bristol was unharmed by Microsoft’s deceptive act or practice. Rather, the jury rendered a verdict that “Bristol prove[d] that Microsoft, in its trade or commerce, engaged in a deceptive act or practice” and that “Bristol prove[d] that it suffered an ascertainable loss proximately caused by Microsoft’s ... deceptive act or practice.” Special Verdict Form (Docket No. 420) at ¶¶ 37, 38. The court had given the jury the following instruction on ascertainable loss: If you find that Bristol has proven that Microsoft engaged in unfair competition or deceptive acts or practices in the course of its trade or commerce, then you must determine whether Bristol has proven that it suffered a measurable injury as a result of the prohibited conduct. As with the instruction I gave you on Bristol’s antitrust claims, injury differs from damages; I will instruct you about damages in a few moments. Injury refers to a harm of the type that a particular law was designed to prevent. In the case of CUTPA, it means an ascertainable loss resulting from the allegedly unlawful conduct. At this point, you should concern yourself only with the existence of a measurable loss or injury, but not the measure of damages, if any. A loss is ascertainable if it is measurable, even though the precise amount of the loss may not be known. There is no need for Bristol to prove the actual amount of asceHainable loss to meet this element. Instead, Bristol must prove that, as a result of an unfair method of competition or a deceptive act or practice, it suffered some sort of deprivation, detriment, or injury that is capable of being discovered, observed, or established. Jury Charge (Docket No. 419) at 71 (emphasis added). The jury then answered “$1.00” to the interrogatory asking “what is the total fair dollar amount you determine will compensate Bristol for any and all injury to its business caused by Microsoft?” Special Verdict Form (Docket No. 420) at ¶ 39. The court instructed the jury to award nominal damages of $1 under certain circumstances. The jury’s award of nominal damages indicates only that the damages to Bristol’s business were not sufficiently quantified by the proof Bristol offered or were not sufficiently attributable separately to Microsoft to render an award of compensatory damages. Nevertheless, the jury clearly did find that Bristol suffered an ascertainable loss to its business from Microsoft’s deceptive act or practice. C. Conclusions of Law 1. Applicable Law Bristol moves for an award of punitive damages as authorized under CUTPA, Conn. Gen.Stat. § 42-110g(a). CUTPA is, by the Connecticut legislature’s design, a broadly remedial statute. Web Press Servs. Corp. v. New London Motors, Inc., 203 Conn. 342, 354, 525 A.2d 57 (1987). CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen.Stat. § 42-110b(a). The Connecticut Supreme Court has observed that' the Connecticut “General Assembly, in adopting the sweeping language of § 5(a)(1) of the [Federal Trade Commission Act (‘FTCA’)], ‘deliberately chose not to define the scope of unfair or deceptive acts proscribed by CUTPA so that courts might develop a body of law responsive to the marketplace practices that actually generate- such complaints.’” Associated Inv. Co. Ltd. P’ship v. Williams Assocs. IV, 230 Conn. 148, 157, 645 A.2d 505 (1994) (citation omitted). “ ‘Predictably, [therefore,] CUTPA has come to embrace a much broader range of business conduct than does the common law tort action.’ ” Id. at 157-58, 645 A.2d 505 (citation omitted). “Moreover, ‘[b]ecause CUTPA is a self-avowed ‘remedial’ measure, Conn. Gen.Stat. § 42-110b(d), it is construed liberally in an effort to effectuate its public policy goals.’ ” Id. at 158, 645 A.2d 505 (citation omitted). Accordingly, the Connecticut Supreme Court has held that “there is ‘no ... unfair method of competition, or unfair [or] deceptive act or practice that cannot be reached [under CUTPA],’ ” such that there is a “unique breadth and flexibility of the' cause of action created by CUTPA.” Id. at 158, 159, 645 A.2d 505 (citation omitted). “In enacting CUTPA, the legislature intended to create an expansive act which would provide relief to persons suffering ‘any ascertainable loss’ as a result of an unfair or deceptive trade practice.” Web Press, 203 Conn, at 354, 525 A.2d 57 (citation omitted). CUTPA provides a private cause of action for compensatory damages. Under CUTPA, “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action ... to recover actual damages.” Conn. Gen.Stat. § 42-110g(a). “In addition, if a court determines that a practice is unfair or deceptive under CUTPA, it ‘may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.’ ” Associated, 230 Conn, at 160, 645 A.2d 505 (quoting Conn. Gen.Stat. § 42-110g(d)). Moreover, “[a] plaintiff who establishes a violation of CUTPA may recover not only actual damages, but in some cases attorney’s fees and -punitive damages as well.” Web Press, 203 Conn. at 354, 525 A.2d 57 (citation omitted); Conn. Gen.Stat. § 42-110g(a) (“The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”); Conn. Gen.Stat. § 42-110g(d) (“In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery.”); see also Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 509, 656 A.2d 1009 (1995); Hinchliffe v. Am. Motors Corp., 184 Conn. 607, 617, 440 A.2d 810 (1981). Contrary to common law practice in Connecticut, a plaintiff may recover punitive damages under CUTPA even if he does not plead or prove compensatory damages. See Associated, 230 Conn, at 160-61 & n. 16, 645 A.2d 505; see also Mead v. Burns, 199 Conn. 651, 666 n. 8, 509 A.2d 11 (1986). It therefore follows that even where a plaintiff has failed to prove any actual damages resulting from a violation of CUTPA, a court “in its discretion may award punitive damages and attorney’s fees under the CUTPA.” Tillquist v. Ford Motor Credit Co., 714 F.Supp. 607, 617 (D.Conn.1989) (citations omitted); see also Jacques All Trades Corp. v. Brown, 42 Conn.App. 124, 131, 679 A.2d 27 (1996). Moreover, a court may also award punitive damages and attorney’s fees to a plaintiff who has been awarded only nominal damages resulting from an unfair or deceptive practice under CUTPA. Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 689-90, 657 A.2d 1087 (1995) (Berdon, J., concurring). Thus, “[t]he award of nominal damages under CUTPA opens the door to other important remedies” provided by Conn. GemStat. § 42-110g. Id. at 690, 657 A.2d 1087. Given this broadly remedial statutory structure, the Connecticut Supreme Court has observed that “CUTPA creates an essentially equitable cause of action.” Associated, 230 Conn, at 155, 645 A.2d 505. In making a finding on punitive damages, the court is to exercise its discretion. Conn. Gen.Stat. § 42-110g(a); Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). The court is mindful that its discretion is not unfettered. A court should not award punitive damages under CUTPA unless the evidence reveals “a reckless indifference to the rights of others, or an intentional and wanton violation of those rights.... In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.” Gargano, 203 Conn. at 622, 525 A.2d 1343 (internal quotation marks and citation omitted). The Second Circuit has summarized the standard for awarding punitive damages under CUTPA: Under CUTPA, which governs the question of the availability of punitive damages in the present case, see Conn. Gen. Stat. §§ 42-110a and [42 — llOJb, a plaintiff who has established a violation of CUTPA may recover punitive damages if the court finds that the defendant’s conduct was recklessly indifferent, intentional and wanton, malicious, violent, or motivated by evil, Gargano v. Heyman, 203 Conn. at 622, 525 A.2d 1343[ ]. Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1040 (2d Cir.1992). In practice, the terms “wilful”, “wanton,” and “reckless” have been (somewhat incoherently) treated as meaning the same thing. Dubay v. Irish, 207 Conn. 518, 532-533, 542 A.2d 711 (1988). They all do involve “ ‘highly unreasonable conduct.’ ” Elliott v. City of Waterbury, 245 Conn. 385, 418, 715 A.2d 27 (1998) (quoting Du-bay, 207 Conn. at 533, 542 A.2d 711). Thus, the Connecticut Supreme Court has summarized recklessness as: “... a state of consciousness with reference to the consequences of one’s acts.... It is ‘more than negligence, more than gross negligence.’ ... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them.” ... Dubay, 207 Conn. at 532, 542 A.2d 711 (citations omitted). “ “Wanton misconduct is reckless misconduct,’ ” i.e., “ ‘such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.’ ” Id. (citations omitted). CUTPA itself “provides no guidance as to a method for determining the amount of a punitive damages award.” Staehle v. Michael’s Garage, Inc., 35 ConnApp. 455, 463, 646 A.2d 888 (1994). Nevertheless, “several methods have gained acceptance by the courts” in Connecticut. Id. By common practice, “courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages.” Perkins v. Colonial Cemeteries, Inc., 53 Conn.App. 646, 649, 734 A.2d 1010 (1999) (citing Staehle, 35 Conn.App. at 462-63, 646 A.2d 888). Many courts have followed the lead of the district court in Bailey Employment Sys. v. Hahn, 545 F.Supp. 62, 73 (D.Conn.1982), aff'd, 723 F.2d 895 (2d Cir.1983), in doubling the amount of actual or compensatory damages. See, e.g., Barco Auto Leasing Corp. v. House, 202 Conn. 106, 110 n. 3, 520 A.2d 162 (1987). This method renders little assistance, however, where a plaintiff has been awarded only nominal damages of one dollar. The court notes that Connecticut courts have implicitly recognized that the “two times actual” standard is inapplicable in such eases by awarding as much as $30,000 and as little as $500 in punitive damages to plaintiffs that received either one dollar or nothing in nominal damages resulting from CUTPA violations. In the absence of an explicit formula or prescribed method for determining the amount of punitive damages in this case, the court takes as its guiding principle that the purpose of awarding punitive damages under CUTPA is to deter future deceptive or unfair business practices by the defendant and others. Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir.1995) (citation omitted). Thus, federal courts in this district have noted that, although “Section 42-110g does not specify how punitive damages are to be measured ... the award should serve the broad remedial goals of eliminating or discouraging unfair methods of competition and unfair or deceptive acts or practices.” Societa Bario E. Denvati v. Kaystone Chem., Inc., No. 5:90-CV-599, 1998 WL 182563, at *10 (D.Conn. Apr.15,1998) (citations and internal quotation marks omitted) (quoting Boulevard Assocs. v. Sovereign Hotels, Inc., 861 F.Supp. 1132, 1139 (D.Conn.1994)). Similarly, in a well-reasoned decision, a Connecticut trial court has held that a defendant’s financial standing is also relevant to a determination of the amount of punitive damages to award for a CUTPA violation: Where compensatory damages are concerned, the focus of the trier must be on what is necessary to compensate fairly the party who has suffered some legal injury and by such compensation to restore the injured party to the position that party would have been in had the wrong not been committed. Once deterrence rather than compensation becomes the focus of CUTPA punitive damages, however, then the financial standing of the party against whom damages are sought becomes relevant and material.... As with the biblical widow’s mite, the financial impact of an event on a party depends on financial circumstances. An amount that might deter a poor widow could seem trifling and leave undeterred a corporate entity with large financial resources. The issue then of the defendant’s financial circumstances is relevant and material to the deterrent non-common law punitive damages that the plaintiff would be required to prove under the CUTPA count. Lenz v. CNA Assurance Co., 42 Conn. Supp. 514, 515, 630 A.2d 1082 (1993) (cited with approval in Boulevard, 861 F.Supp. at 1139). Accordingly, the court’s review of Connecticut case law and the statute itself reveals that, when faced with a plaintiff who has been awarded only nominal damages under CUTPA, a punitive damage award under CUTPA must serve the goal of deterring future unfair or deceptive trade practices by the defendant and others. See Bailey, 545 F.Supp. at 73 (“In addition, since a number of Bailey’s misleading or deceptive representations were blatantly intentional, and since many of the written communications, including the Bailey brochure, appear to have been used to induce not only Hahn but other prospective franchisees to purchase a Bailey franchise, indicating that the deceptions were long-term practices rather than unique acts practiced only upon Hahn, punitive damages, which hopefully will serve as a deterrent to the kinds of unfair and deceptive acts practiced by Bailey, should be assessed.”) (cited with approval in Tingley, 49 F.3d at 96, and Lenz, 42 Conn.Supp. at 515 n. 2, 630 A.2d 1082); cf. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 533, 562 A.2d 1100 (1989) (“Moreover, punitive damages generally have the flavor of punishment against a defendant for the quality of his conduct and of deterrence to a defendant or others against such conduct in the future.”). A punitive damages award under CUTPA should therefore take account of the financial status and size of the defendant to ensure that the damage award will have the deterrent effect on the defendant and others that it is designed to achieve. 2. Seventh Amendment Issue As a preliminary matter, the court notes that Bristol did not waive any potential right to punitive damages by failing to request a jury instruction on the issue. As both parties agreed at oral argument, the Seventh Amendment to the United States Constitution guarantees the right to a jury determination of punitive damages. See Defender Indus., Inc. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502, 507 (4th Cir.1991) (en banc) (citing O’Gilvie v. Int’l Playtex, Inc., 821 F.2d 1438, 1447-48 (10th Cir.1987); McKinnon v. City of Berwyn, 750 F.2d 1383, 1391-92 (7th Cir.1984)). By failing to request a jury charge on punitive damages, however, Bristol did not waive its right to have the issue of punitive damages determined; rather, pursuant to Fed.R.Civ.P. 49(a), it waived only its right to have the issue determined by a jury. Microsoft’s reliance on Fed.R.Civ.P. 51 to argue that the court should not enter a finding on punitive damages is unavailing. It is true that, in general, “[n]o party may assign as error the ... failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict.” Fed. R.Civ.P. 51. However, the'impact of this rule is mitigated when, as here, a special verdict form is used. Rule 49(a) provides in pertinent part that: The court shall give to the jury such explanation and instruction concerning the matter [ ] submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict. Fed.R.Civ.P. 49(a) (emphasis added). Because the issue of punitive damages was “omitted” from both the special verdict form and the accompanying instructions, the court may enter its own -finding on the issue pursuant to Rule 49(a). See Fed. R.Civ.P. 49(a); Piesco v. Koch, 12 F.3d 332, 343 (2d Cir.1993); Therrell v. Georgia Marble Holdings Corp., 960 F.2d 1555, 1563 (11th Cir.1992). The court will thus turn to determining whether punitive damages should be awarded in this case for Microsoft’s deceptive act or practice in violation of CUTPA. 3. Microsoft’s conduct in committing a deceptive act or practice in violation of CUTPA rises to the level of reckless and wanton behavior sufficient to award CUTPA punitive damages , Consistent with the jury’s verdict that Microsoft violated CUTPA through deceptive conduct, the court finds that Microsoft engaged in deceptive conduct that satisfies the standard for awarding punitive damages. Microsoft made deceptive statements regarding the WISE Program, beginning in October 1996 and then in 1997 through at least July 1999. Microsoft did so with reckless and wanton indifference to the harm this deceptive conduct caused Bristol and ISVs who relied upon Microsoft’s assurances of its commitment to the continued viability of the WISE Program and to providing full access for WISE contractors to the “latest” version of Windows NT and its APIs. The court finds that Microsoft led ISVs and developers to believe — and wanted them to believe — three key factual predicates: 1) the source code for Windows NT would be available to Microsoft’s WISE Program partners into the future; 2) NT server technologies would be included with the source code provided to Microsoft’s WISE Program partners; and 3) Microsoft’s WISE Program partners had and would have “the very latest” code for each version of Windows NT and its APIs. The court finds that Microsoft clearly intended for Bristol to sell its product on the basis of this belief, which belief Microsoft intended to instill in ISVs, developers, and other potential Microsoft customers. While the court accepts that these three factual predicates, extracted from and conveyed through, inter alia, the Press Release, the Open Letter, and PX 1, were true in 1994 and 1995, there came a time beginning in 1996 when these three assertions were not true, when Microsoft knew they were no longer true, and yet Microsoft continued to promote these three assertions. Regarding (1) and (2), evolving over time but by at least the summer of 1997, it was clear that Microsoft would neither continue to provide WISE contractors with all of the latest NT source code nor enter into new WISE contracts that provided all of the code, including the NT 4 and NT 5 server technologies. Nevertheless, Microsoft continued to distribute PX 1, including its discussion of the benefits to MIS managers of the WISE Program for easing the burdens of client/server migration, which would require that the WISE products be able to support the latest server technologies that a corporation is using. See PX 1 at 5. Indeed, internal Microsoft communications indicate that Microsoft became concerned when Bristol was close to reaching an agreement on a major deal to license its software for use on server operating systems and suggest that Bristol’s impending success in bringing the WISE Program to NT server technologies expedited Microsoft’s decision to reduce Bristol’s access to NT source code. Regarding (3), Microsoft firmly believed in May 1996 that, although Bristol had taken delivery of some of the latest NT 4 source code “in error,” Bristol and its fellow WISE Progra