FTC Tries Again To Stop Microsoft's Already-Closed Deal For Activision (reuters.com) 33
U.S. antitrust regulators told a federal appeals court Wednesday that a federal judge got it wrong when she allowed Microsoft's $69 billion purchase of Activision to close. Reuters reports: Speaking for the Federal Trade Commission, lawyer Imad Abyad argued that the lower-court judge held the agency to too high a standard, effectively requiring it to prove that the deal was anticompetitive. He told a three-judge appeals court panel in California that the FTC had only to show that Microsoft had the ability and incentive to withhold Activision's games from rival game platforms to prove the agency's case. He said the FTC "showed that in the past that's what Microsoft did," referring to allegations that Microsoft made some Zenimax games exclusive after buying that company.
Speaking for Microsoft, lawyer Rakesh Kilaru called the FTC case "weak" and said that the agency had asked the lower-court judge for too much leeway. "It is also clear that the standard can't be as low as the FTC is suggesting," he said. "It can't be kind of a mere scintilla of evidence." He argued that the agency failed to show that Microsoft had an incentive to withhold "Call of Duty" from rival gaming platforms. The judges actively questioned both attorneys, with Judge Daniel Collins pressing the FTC's attorney on how concessions that Microsoft gave British antitrust enforcers affect the U.S. market. He also appeared to take issue with Abyad's assertions that more analysis of the deal was necessary, especially since Microsoft had struck agreements with rivals recently, including one with Sony this past summer. "This was not a rush job on the part of the FTC," he said.
Two antitrust scholars who listened to the arguments said the FTC faced a tough slog to prevail. A finding of "clear error" by a lower court judge is "really stark," said Alden Abbott, a former FTC general counsel, comparing it to the idea that a court ignored key evidence from a witness. Abbott said the appeals court noted that the trial judge had considered "a huge amount of record evidence."
Speaking for Microsoft, lawyer Rakesh Kilaru called the FTC case "weak" and said that the agency had asked the lower-court judge for too much leeway. "It is also clear that the standard can't be as low as the FTC is suggesting," he said. "It can't be kind of a mere scintilla of evidence." He argued that the agency failed to show that Microsoft had an incentive to withhold "Call of Duty" from rival gaming platforms. The judges actively questioned both attorneys, with Judge Daniel Collins pressing the FTC's attorney on how concessions that Microsoft gave British antitrust enforcers affect the U.S. market. He also appeared to take issue with Abyad's assertions that more analysis of the deal was necessary, especially since Microsoft had struck agreements with rivals recently, including one with Sony this past summer. "This was not a rush job on the part of the FTC," he said.
Two antitrust scholars who listened to the arguments said the FTC faced a tough slog to prevail. A finding of "clear error" by a lower court judge is "really stark," said Alden Abbott, a former FTC general counsel, comparing it to the idea that a court ignored key evidence from a witness. Abbott said the appeals court noted that the trial judge had considered "a huge amount of record evidence."
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A court ruling can't magic a game into existence. It may surprise you that development takes time. There's a reason Nintendo isn't suing Microsoft, and that's because you're talking out of your arse.
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Considering you are running a platform that doesn't share it's games with anyone, it's hard to take what you say very seriously. I mean, how many platforms can I play mario or zelda on? That are not owned by Nintendo?
Yep, that's what I thought. If Nintendo wants COD, the rest of us want Zelda and Mario.
At this point this is waste of taxpayer money (Score:5, Interesting)
Maybe FTC had a good case, maybe they could have approached this in a different way. However, they used the wrong tactics, and they lost.
Looking back, all other major regulatory agencies got something from Microsoft. EU had them open up to other cloud providers. UK had them sign rights to a competitor (Ubisoft). Many smaller competitors had juicy deals. The only organization left out was the FTC. And the reason for their embarrassing loss, is they wanted to play the waiting game, and did not even sit at the table to influence the deal.
So, at the very last second, they sued for an emergency injunction, after the deal was approved by 99% of the world (at least in principle), and Microsoft was ready to close over them. And they did not even bring their primary witness to the court room, but only provided video testimony.
How anyone can support this level of inaptitude is beyond me. At this point, they should take their losses, and hope everyone stops talking about the issue. Otherwise, we actually need FTC for many other things (like cable companies gauging us), and their loss of public support could be very detrimental.
So we have had 40 years of Court packing (Score:3, Interesting)
Microsoft literally pulled all of bethesda's games from the PlayStation as soon as they bought it. And yet here we are letting them by another pillar of the game industry.
I think this is a great use of my taxpayer dollars. And I mean that. I would rather watch my government fighting for what's right and losing then just immediately
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Microsoft literally pulled all of bethesda's games from the PlayStation as soon as they bought it.
Did bethesda sell their ownership of the fallout series or something [playstation.com]
I haven't seen evidence of them pulling anything since the bethesda acquisition. Only a new release that was never released on ps5 afterwards, starfield.
Can someone explain the US system to me? (Score:2, Interesting)
How does the FTCs regulatory power end up at the discretion of a lower court judge in the first place?
In other countries, companies do not have the ability to take regulators to court like this. What the regulator says, goes... because this isn't about a law, it is about a regulation... in order to challenge it you need to challenge the law the regulation is being made under, not the regulation itself.
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Here in Australia you have the Australian Competition and Consumer Commission which is the agency that is responsible for evaluating mergers and acquisitions (and other breaches of competition law).
This agency rejected the merger of TPG (at the time the second largest broadband provider in the country behind Telstra) and Vodafone Australia.(the Australian operations of global mobile giant Vodafone) because they concluded that it would result in less competition.
They argued that in the absence of the merger,
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I was pointing out that, unlike what the OP said, in other countries companies DO have the ability to take regulators to court.
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companies do not have the ability to take regulators to court like this
Not clear on this myself, but this was not the company taking the regulator to court. It was the regulator taking the company to court. It seems in the US the power of the FTC is excised through court rulings.
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Yes - and this is what I am talking about, as it seems totally backwards to how most other countries do it.
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What the regulator says, goes... because this isn't about a law, it is about a regulation... in order to challenge it you need to challenge the law the regulation is being made under, not the regulation itself.
So if a regulator oversteps their authority and does something outside the law you have no recourse?
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Is that the case here? Explain how.
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No not at all. I'm actually very pleased to see the FTC finally pursuing anti-trust aggressively. I'm more pissed that they seem to be so bad at it.
But I also think it's kind of absurd for the subject of a regulatory enforcement action to have no recourse to challenge the regulator in court if they feel the law is being applied inappropriately.
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How does the FTCs regulatory power end up at the discretion of a lower court judge in the first place?
Because the United States has a system of checks and balances, by design.
In other countries, companies do not have the ability to take regulators to court like this. What the regulator says, goes...
The United States isn't other countries. It's the United States. The whole point of our system was to prevent any one part of the government from having so much power that they can simply make a decree, and people must obey without any recourse to appeal. I think judges have too much power in our system, but I'm still glad that we at least have a right to appeal to courts when anyone in the government, especially some alphabet bureaucr
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Because regulatory bodies can be just as corrupt and wrong as any corporation. So, any country where you can't take a regulatory body over you to court is already a broken system ripe for abuse.
Microsoft is a recidivist offender. (Score:3)
https://violationtracker.goodj... [goodjobsfirst.org]
Sure, recently they're paying more treason-related fines then anti-trust related fines but they have clearly shown willingness to abuse their market share and hurt consumers for monetary gain. Just like a drink driver might lose the right to drive a car, companies that have abused their market share should be barred entirely from all forms of M&A.
It is never too late (Score:5, Insightful)
To those who say this is already too late: A "closed" deal could be re-opened, what is bought can be forced to be sold, don't underestimate what the US Govt can force you to do when push comes to shove.
I am not saying FTC is right or wrong in this case, but thinking that one could "speed past" a regulator if one move fast enough was never a good idea.
I'm gonna be pissed at that earlier judge (Score:2)
... because I threw away all my Blizzard games when I deleted my Battlenet account to stop M$ getting its mitts on me.
Yet, another example of our non-purchased purchases. Sigh.
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You do know that "deleting" your account merely sets a "deleted" flag on your account in most IT systems, don't you?
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I was actually quite surprised the option was even there to be honest, but I soon got the impression they weren't shitting me. There was a five day cool off period where I could come back after the fact but Blizzard warned me multiple times when I went through the process that there was no way for them to ever recover a deleted account.
Itâ(TM)s true though⦠(Score:1)
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And when Halo CE was released, it had a Mac and Windows release as well. It was available on Xbox, MacOS and Windows. It was a release that lasted until Apple went Intel I belie