Today Microsoft shipped Windows 98. Shortly thereafter the Department of Justice and 20 states' Attorneys General filed suit against Microsoft under the Sherman Antitrust Act.
The important thing to note in this sequence of events was that the shipment to OEMs was made prior to the suit being filed. This would not have happened if Microsoft had not requested last minute negotiations on May 14, 1998. The filing of the suit was postponed for the weekend to allow for the talks to proceed. Shortly after the original shipping date, Friday May 15th, Microsoft withdrew the concessions which had enticed the DOJ into the last minute negotiations and the talks fell apart.
If this happened during diplomatic discussions, it would be obvious that the one side had bargained in bad faith to gain a strategic advantage. Since the genie is now out of the bottle, it will be impossible for the DOJ or the courts to put it back in. This means that Microsoft has won the battle even if they lose the court case. They have succeeded once again in being able to profit from illegal activities.
But let me take a step back and do a what if.... If this wasn't software but drugs or Mob related, the Feds would take a much different approach. Under current court rulings, the authorities have the right to seize all assets and profits created by the illegal undertaking without a hearing or due process. It would then be up to the defendant to convince the court that the assets had been wrongfully seized, further hamstrung by having been deprived of those resources to mount that case. If the DOJ and States split all of the wealth that Microsoft had garnered from the illegal licensing practices mentioned in the 1995 Consent Decree and all similar actions since then the American people could rest assured that crime does not pay (unless you can hide behind a piece of paper which ensures that your executive decisions will not make you liable for the actions of your Corporation.)
By