Judge deals blow to FTC.
- U.S. Judge Jacqueline Scott Corley has revived Microsoft’s $68.7 billion Activision Blizzard acquisition.
- The FTC wanted to put the deal on hold pending its administrative case, but the judge found the agency didn’t demonstrate a likelihood it would prevail.
-
MoginRubin’s Jonathan Rubin last wrote about it HERE, suggesting the law may be on Microsoft’s side. The opinion is available below.
- Attention Editors and Reporters: To speak with an authority on competition law at MoginRubin, contact Sheilah Buack by email or by calling +1 619.687.6611.
In December 2022, the Federal Trade Commission filed an administrative action to block Microsoft’s proposed acquisition of Activision, publisher of many popular video games, including the shooter game franchise “Call of Duty.” Activision made $7.5 billion in 2022. Microsoft seeks to buy it for a record-breaking $68.7 billion. Call of Duty is so popular, the FTC argues, that it is essential to the success of any video game platform. Therefore, the FTC believes, the merger would enable Microsoft to keep this critical game from its rivals, harming them and consumers. Microsoft tried to get out ahead of opposition to the deal by making deals and announcing commitments designed to make it more palatable to the DOJ.
The FTC sought a preliminary injunction from the Northern District of California to put the merger on pause so it could complete its administrative action. With a July 18 termination date looming for the merger, the court fast-tracked the proceedings. After reviewing “voluminous pre-and-post hearing writing submissions” and a five-day hearing, Judge Jacqueline Scott Corley denied the FTC’s request. “The FTC has not shown it is likely to succeed on its assertion the combined firm will probably pull Call of Duty from Sony PlayStation, or that its ownership of Activision content will substantially lessen competition in the video game library subscription and cloud gaming markets,” she wrote. FTC v. Microsoft, N.D. Calif., No. 3:23-cv-02880-JSC.
Meanwhile, trial of the administrative action is scheduled to go before an FTC judge on August 2, 2023.
For insightful commentary on the case, read An Unstoppable Force Meets an Immovable Object: Microsoft to Fight FTC Over Activision Deal by Jonathan Rubin. Also, download the redacted opinion: Federal Trade Commission v. Microsoft Corporation et al, 3_23-cv-02880, No. 305 (N.D.Cal. Jul. 10, 2023)