Legend_Knight98

alt account
Banned
Oct 30, 2023
148
Today is the day: December 6th at 9:00 AM in San Francisco we are back to Zoom :p

FTC v. Microsoft Corporation - Opening Brief Filed under seal. Denial of preliminary injunction in FTC's administrative antitrust action to block Microsoft's proposed acquisition of Activision. [3:23-cv-02880-JSC]

Link for the streaming (San Francisco Courtroom 1).

In any case, recordings of all oral arguments are available the day after argument here.



I think that worst case scenario is the FTC winning and the court requesting MS to hold ABK separate until the FTC administrative process is done. If that happens (unlikely although not impossible), I think that MS and the FTC will reach a settlement, MS will make some specific concessions to the FTC (some extra behavioural remedies) and be done with it.

In the unlikely scenario where the ftc wins I think they will likely demand the divestiture of the Activision branch leaving Blizzard and King to Microsoft, or the divestiture of Cod ip...
 

biglo25

Member
Apr 28, 2020
2,873
the fact he brought up minecraft doesn't have a native ps5 port ignores that Xbox Series S|X doesn't have one either
 

DarkCloud12X

Member
Oct 27, 2017
322
Why do they keep implying that Minecraft is better on Xbox over Playstation? There is no enhancement on Xbox over the base One version and the PS4 version...full stop. And in fact, the PS4 version has enhancements with an exclusive VR mode.

Why has this never been corrected?
 

Sr Kitsune

Prophet of Truth
Member
Oct 27, 2017
2,034
Baja California, Mexico
Why do they keep implying that Minecraft is better on Xbox over Playstation? There is no enhancement on Xbox over the base One version and the PS4 version...full stop. And in fact, the PS4 version has enhancements with an exclusive VR mode.

Why has this never been corrected?

I would like to know that, I don't even know what features the FTC is referring are missing in Playstation over Xbox.
 

Deleted member 5876

Big Seller
Banned
Oct 25, 2017
2,559
The judges seemed to lack a lot of knowledge about mergers and they even admitted as much from what little I saw.
So it will be interesting to see what happens.
 

killerrin

Member
Oct 25, 2017
9,283
Toronto
Vibe check? Were the ftc arguments better or worse? Did they do any extra homework?
The FTC essentially tried to make the argument that they should be able to block anything without any proof because a business will "always try to turn a profit and will always aim to win in the market".

Then they tried to claim that the courts don't have the power to stop them from investigating and that they "must be bound to always grant an injunction upon request" because of the former reasons and because failing to do so "prevents them from carying out their mandate as set by Congress".
 
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T0kenAussie

Member
Jan 15, 2020
5,257
The FTC essentially tried to make the argument that they should be able to block anything without any proof because a business will "always try to turn a profit and will always aim to win in the market".

Then they tried to claim that the courts don't have the power to stop them from investigating and that they "must be bound to always grant an injunction upon request" because of the former reasons and because failing to do so "prevents them from caring out their mandate as set by Congress".
That third point is wild because they had asked congress for stronger laws and funding to create the mandate they are taking about and congress said no lol
 

reksveks

Member
May 17, 2022
3,761
My un-educated opinion was that it was the same argument, it was still better than the private Gamers beforehand.

There is always a chance that the FTC could win. It's rather funny to argue that they didn't have enough time to investigate the impact in the cloud/subscription market or that the impact of the cloud divestment was basically irrelevant. I do understand the point about the latter theoretically but it's dumb practically.
 

Legend_Knight98

alt account
Banned
Oct 30, 2023
148
The FTC essentially tried to make the argument that they should be able to block anything without any proof because a business will "always try to turn a profit and will always aim to win in the market".

Then they tried to claim that the courts don't have the power to stop them from investigating and that they "must be bound to always grant an injunction upon request" because of the former reasons and because failing to do so "prevents them from caring out their mandate as set by Congress".

I don't know, I read on Twitter that many people think the judges seemed to agree more with Ftc than with Microsoft this time.
What I wonder is, in case the Ftc wins what are the consequences?
 

Dingo

Member
Jul 19, 2022
799
Seeing the arguments and who the judges were I think they'll side with Corley's decision. Could be months before a decision is made tho.

And by then bobby will be gone and the fusion of ABK and MS will be so deep I have no idea what a "keep seperate order" could do?
 

The Dave

Alt Account
Banned
Jul 16, 2023
2,093
The FRC really are a sad bunch of people to be trying so hard over games related acquisitions
 

Legend_Knight98

alt account
Banned
Oct 30, 2023
148
As Idas said before, the most likely outcome is the judge asks MS to keep ABK 'seperate' until the actual rest of the process is completed.

ABK games could be added to GP prior to the 9th circuit comes to a decision.

I am not very familiar with these issues, but what does it mean to keep separate? Because if it means that Microsoft can't incorporate Activision's profits and earnings, and can no longer manage Activision's , that could be a problem for the whole gaming division If the issue is not resolved quickly
 

DoradoWinston

Member
Apr 9, 2019
6,526
As Idas said before, the most likely outcome is the judge asks MS to keep ABK 'seperate' until the actual rest of the process is completed.

ABK games could be added to GP prior to the 9th circuit comes to a decision.
Pretty sure that's why they are working over time to intertwine themselves with abk as much as possible behind the scenes. Makes that type of request much more difficult to actually followed thru at least that was my understanding following a similar discussion a while ago
 

reksveks

Member
May 17, 2022
3,761
I am not very familiar with these issues, but what does it mean to keep separate? Because if it means that Microsoft can't incorporate Activision's profits and earnings, and can no longer manage Activision's , that could be a problem for the whole gaming division If the issue is not resolved quickly

I am no expert but it probably just to ensure that you can really sell ABK off in case you need to so its more about ensure that you aren't removing key divisions and functions within ABK or making changes that is too hard to reverse. Profits is going to be irrelevant imo because you could still sell ABK without that $ they have generated whilst being apart of MS. ABK games on GP is going to be easy to undo.

As Dorado says, MS will be incentivized to make sure that they get intertwine as much as possible.
 
Oct 27, 2017
8,020
The FTC essentially tried to make the argument that they should be able to block anything without any proof because a business will "always try to turn a profit and will always aim to win in the market".

Then they tried to claim that the courts don't have the power to stop them from investigating and that they "must be bound to always grant an injunction upon request" because of the former reasons and because failing to do so "prevents them from caring out their mandate as set by Congress".
In my very limited experience telling Jusges what they can and cannot do usually doesn't go over well.
 

killerrin

Member
Oct 25, 2017
9,283
Toronto
In my very limited experience telling Jusges what they can and cannot do usually doesn't go over well.
Yeah, the judges callsd them out for that one and forced them to walk it back.

I don't know, I read on Twitter that many people think the judges seemed to agree more with Ftc than with Microsoft this time.
What I wonder is, in case the Ftc wins what are the consequences?

That is likely because of what ultimately happened. The FTC was essentially asking the judges to overturn precident and set a brand new one. So they came prepared to argue that (however weak that argument ultimately ended up being once you boil down to the root of it). As a result they weren't really arguing that the court was wrong to come to the conclusions it did, but that the way it came to it's conclusions was wrong because it should have known that when the FTC said X they really meant Y.

Meanwhile Microsoft was arguing that when the FTC argued X, it really was X; And that they provided zero arguments, zero records, and zero proof on all instances of Y. And that the FTC couldn't even find a witness capable of backing them up. Microsoft then pulled up case law showing exact precidents from recent court cases against the FTC/DOJ using similar or the same arguments used against them, that the FTC/DOJ ended up losing. Stating that the Judge should respect precident here as well.

The FTC then rebutted that X and Y are similar enough that they should have both been considered together, but only under some selective scenarios where the rules aren't spelled out. They tried to make a bunch of arguments that they refused to make earlier during the actual trial, and then they tried to claim that they didn't have enough time to investigate the acquisition, and that the CMAs decision on cloud has zero impact on the rest of the world (they're wrong). They also brought back the false Minecraft Argument that Microsoft nerfs Minecraft on PS5 because it doesn't run native (despite the fact that it doesn't on the SXS either).

And yeah. That's basically what this all boils down to, whether the FTC should be allowed to set new precident or not.

In my (non-legal) opinion, with the evidence they provided (almost none) they shouldn't. But I also think that Microsoft could have served better if they came prepared to debunk some of the falsehoods being parroted by the FTC that everyone seems to accept as fact for whatever reason.
 
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Idas

Idas

Antitrusting By Keyboard
Member
Mar 20, 2022
2,088
www.law360.com

9th Circ. Mulls Failed Bids To Pause Microsoft's Activision Buy - Law360

Attorneys for the Federal Trade Commission and for a group of gamers told the Ninth Circuit on Wednesday that a lower court wrongly denied their respective preliminary injunction requests to pause Microsoft's $69 billion purchase of Activision Blizzard, which closed in October, saying...

Gamers' lawsuit (archived video):


View: https://www.youtube.com/watch?v=xBwMdAfV9cE

Joseph M. Alioto, who represents the gamers, said the lower court misapplied Section 7 of the federal Clayton Act by stating in the order denying the preliminary injunction that the plaintiffs must show "immediate, irreparable harm."

"The statute says 'the danger of irreparable loss is immediate,'" Alioto said. "Just the threat and the danger of a loss and injury. And so the court missed it twice. So you can see that she repeats it again and again and again. 'The plaintiffs must establish immediate, irreparable harm.' And that is not correct, that is not what the statute says."

Rakesh Kilaru of Wilkinson Stekloff LLP, who represents Microsoft, told the panel that the lower court applied the correct standard in denying the gamers' preliminary injunction bid.

Kilaru said the court correctly cited the Ninth Circuit's 2016 opinion in Boardman et al. v. Pacific Seafood Group , which he quoted as holding "the threat of irreparable harm is sufficiently immediate to warrant preliminary injunctive relief if the plaintiff is likely to suffer irreparable harm before a decision on the merits can be reached."

"The judge found no irreparable harm under the Boardman standard," he said.

The FTC (archived video):


View: https://www.youtube.com/watch?v=CCTToUDUERw

The government's appeal, Your Honor, is every bit about the right process for merger review, as it is about the denial of relief," the FTC's in-house attorney Imad Abyad told the panel. "The merger at issue here stands to reshape the entire gaming industry by giving Microsoft the chance to dominate for years to come."

"And yet the district court waved it through with little scrutiny, principally by misapplying Section 13(b) of the FTC Act, which this court in Warner Communications held entitles the FTC to a [preliminary injunction] if it shows serious questions as to the antitrust merits," Abyad continued, referencing the 1984 opinion in FTC v. Warner Commc'ns Inc .

During the hearing on the FTC case, Kilaru said the FTC's case "was built on the idea that a single game made by a single company is the key to competition in the dynamic gaming industry," which the lower court rejected after hearing from 16 witnesses, along with reviewing numerous depositions and documents.

I thought that it was funny how MS said that the FTC wanted divestments and that's what they had done with the cloud gaming rights. But then the FTC said that those weren't divestments and were closer to "conductual" remedies taking into account how hard to monitor they were. It seems that even the FTC believes that the CMA agreed to behavioural remedies :p
 

Sheepinator

Member
Jul 25, 2018
28,247
Sigh. In what world does having a non-voting Board seat mean a company now has control?

finance.yahoo.com

Microsoft, OpenAI tie-up comes under antitrust scrutiny

LONDON (Reuters) -Microsoft's partnership with ChatGPT maker OpenAI is under US and UK antitrust scrutiny, the British regulator and a media report said on Friday, following the startup's boardroom battle that led to the sudden ouster and return of CEO Sam Altman. After the dramatic episode...
 
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DopeyFish

Member
Oct 25, 2017
10,892
I don't think there is anything there but the whole situation with the CEO leaving and immediately being at MS to returning and suddenly MS having a board seat was a little weird.

microsoft has a *major* agreement with OpenAI, the company at that moment almost imploded. OpenAI fired him, Microsoft hired him to try to protect themselves as they are heavily vested in the outcome. Microsoft getting a little protection by having an observational seat after the company almost yeeted itself off a cliff isn't surprising at all.
 

Wereroku

Member
Oct 27, 2017
6,445
microsoft has a *major* agreement with OpenAI, the company at that moment almost imploded. OpenAI fired him, Microsoft hired him to try to protect themselves as they are heavily vested in the outcome. Microsoft getting a little protection by having an observational seat after the company almost yeeted itself off a cliff isn't surprising at all.
I agree it's not but I can see why it would that entire situation might get them investigated. Honestly it makes more sense then their case against ABK.
 

DopeyFish

Member
Oct 25, 2017
10,892
I agree it's not but I can see why it would that entire situation might get them investigated. Honestly it makes more sense then their case against ABK.

i don't see it at all. Microsoft invested what? $10-15 billion? they got non-control out of it but any profits. OpenAI is a non-profit company anyways. well, it certainly hasn't generated any profit as they are deep in the red. But Microsoft is leveraging them as best as they can.

The Altman situation really is just OpenAI board acting with disregard, Sam Altman acting in response to salvage his future/work and Microsoft responding to circumstances to protect their investment by getting an observational seat so they're better able to proactively react.

Microsoft is staking a lot of their enterprise, consumer and server divisions with OpenAI technology yet at the same time that OpenAI board almost severely damaged Microsoft on their own personal whims so Microsoft themselves had to respond *fast* and they did as they should have to protect shareholders and the company... something they are required to do. So even though the OpenAI situation itself was very strange, the actions of MS were not.

CMA (much like the FTC) are just addicted to setting themselves on fire every moment they go to look at MS just to say "look, there's smoke!"