An undisclosed Microsoft presentation is now central to a multi-million dollar antitrust fight

There’s a new development in a Microsoft antitrust case, originally filed in England’s High Court in April 2021, and it doesn’t look good for the tech giant.

A consent order from the UK Competition Appeal Tribunal is demanding documents from past and present Microsoft executives that may have a bearing on a £270 million (about $361 million) lawsuit filed by secondhand software reseller ValueLicensing. The company alleges that Microsoft offered incentives to customers to shift to subscription services without selling their pre-owned licenses.

Central to this development is a historic, potentially damning internal “Second-Hand Software” (SHS) presentation, referred to in the consent order as a “known adverse document.” The specific content of the presentation has not yet been made public, but Microsoft has until October 31 to explain why it did not disclose the presentation earlier.

Further, a confidentiality designation that previously applied to 11 documents relevant to the case has been lifted.

These developments represent “an inflection point in European tech litigation,” said Forrester senior analyst Dario Maisto.

“For Amazon (AWS), Google, and Microsoft, the signal is clear: Antitrust tribunals are fully comfortable examining software licensing mechanics as tools of anticompetitive lock-in.”

The allegations against Microsoft

Under EU law, it is fully legal to resell perpetual pre-owned (“second hand”) software licenses; software makers cannot use their Terms of Service (ToS) to override this right. ValueLicensing specializes in this secondary market, re-selling licenses for products including Microsoft Windows and Microsoft Office.

But the company alleges that Microsoft has stifled the supply of these pre-owned licenses in the UK and the European Economic Area (EEA) comprising 27 European Union member and non-member countries. It says Microsoft abused its market dominance and entered into agreements that “prevented, restrained or distorted competition” via clauses restricting customers from reselling their Microsoft perpetual licenses in return for subscription service discounts.

“The net result has been higher prices and less choice for customers, who have been steered into cloud-based Office365 and Azure subscriptions,” ValueLicensing claimed, pointing out that many enterprises, as well as publicly-funded organizations, rely on pre-owned Microsoft licenses to keep operating costs low.

The consent order is asking Microsoft to provide its “view” of whether those allegations are true, and to make “reasonable endeavors” to contact former COO Kevin Turner, former president and EVP Jean-Philippe Courtois, and former corporate VP of worldwide licensing and pricing Joe Matz. The company must document that it has done so by November 30.

The company must also file a witness statement from a former consultant addressing who within the company was aware of the SHS presentation and when they became aware of it; why the presentation was not disclosed as a “known adverse document”; when in-house legal counsel became aware of the presentation; what steps were taken to check for these types of “known adverse documents”; and the decision making process within the company when the presentation was located.

Microsoft is also being asked to search for specific terms in the emails and document repositories of Matz, Courtois, Turner, and several other named current and past research managers, former VPs and presidents, between July 2012 and June 2020.

The more than 40 search terms include “SHS,” “antitrust,” “competition,” “ValueLicensing,” “used licenses,” “do nothing,” “competition,” “revenue,” and “discount licensing.” These documents cannot be designated “restricted” or “confidential,” according to the consent order. They must also be disclosed by November 30.

A witness statement from deputy general counsel Cynthia Randall has been paused.

Microsoft has said that any abuse of dominance was “objectively justified” and that the contractual terms at issue were “necessary and reasonable.” It also argued that anti-competitive effects were “outweighed by and proportionate to” certain benefits and efficiencies.

The company did not reply to a request for comment.

Microsoft is facing similar antitrust allegations from UK barrister Alexander Wolfson, who issued an opt-out class action claim in May 2025 alleging that public and private UK organizations that purchased software licenses, including those for Microsoft Office and Windows, were overcharged over a 10 year period due to Microsoft’s market practices.

Wolfson said in a release at the time that Microsoft’s actions had a significant and far-reaching impact on UK consumers, businesses, and public bodies. “With billions of pounds potentially at stake, this case is about ensuring fairness in the digital marketplace and ensuring even the largest tech companies play by the rules,” he wrote.

Implications for enterprise leaders

For enterprise CIOs, procurement leads, and IT financial managers, the current development holds “practical implications,” said Forrester’s Maisto: Organizations that surrendered perpetual licenses or agreed to contractual restrictions against reselling software as part of an enterprise agreement (EA) renewal or cloud commitment may have given up quantifiable asset value.

“The secondary market for perpetual licenses remains legally valid,” he pointed out.

CIOs should pay close attention to licensing “penalties” or inflated costs for running legacy software on third-party clouds, like AWS or GCP, versus Azure, he said. They should also evaluate the benefits of hybrid licensing strategies. Combining pre-owned perpetual licenses for static workloads with cloud subscriptions for dynamic workloads can yield significant cost savings compared to all-subscription models, Maisto pointed out.

Finally, he urged, “use these rulings as leverage during Microsoft agreement renewals.”

This article originally appeared on Computerworld.