FTC asks court to prevent Microsoft closing Activision Blizzard deal early

At a glance:

• US court has temporarily ordered Microsoft not to complete the Activision deal
• The FTC said press reports indicate the two companies planned to merge despite pending legal proceedings and UK block
• Commission is seeking a prelininary injunction to block deal until after August anti-trust hearing

Update, June 21, 2023: The hearing regarding the FTC's request for a preliminary injunction begins tomorrow (June 22) and will run through June 29.

Reuters reports several key executives have been named as witnesses, including:

• Satya Nadella, CEO of Microsoft
• Bobby Kotick, CEO of Activision Blizzard
• Jim Ryan, CEO of Sony Interactive Entertainment
• Dov Zimring, former director of product management for Google Stadia
• Amy Hood, CFO of Microsoft
• Phil Spencer, CEO of Microsoft gaming
• Tim Stuart, CFO of Microsoft gaming
• Two executives from Nvidia Corp

Update, June 15, 2023: In further filings yesterday, both Microsoft and Activision Blizzard have requested that the court expedite the case management conference, holding it on either June 15 or 16, rather than the following week.

The FTC has filed its own objection to this request.

Update, June 14, 2023: The US court has granted the FTC its temporary restraining order, blocking Microosft's proposed acquisition of Activision Blizzard until the Commission's request for an injunction is considered.

The Verge shared a court filing, which order Microsoft and Activision not to complete the deal "until after 11.59pm PT on the fifth business day after the court rules on the FTC's request for a preliminary injunction" or a day set by the court, depending on which is later.

A hearing for the preliminary injunction request will be held on either June 22 or 23, almost certainly pushing any potential completion of the transaction into July at the earliest.

If the acquisition does not close before July 18, and an extension of this deadline is not agreed upon, Microsoft will need to pay Activision Blizzard $3 billion in fees to abandon the deal.

Original story, June 13, 2023: The Federal Trade Commission has asked a US court to prevent Microsoft from completing its proposed acquisition of Activision Blizzard before the Commission's legal challenge against the deal has been addressed.

In a new court filing to the US District Court of Northern California, spotted by VGC, the FTC requested a temporary restraining order and preliminary injunction against both Microsoft and Activision Blizzard, claiming to two companies "have represented that they may consummate the proposed acquisition at any time."

Microsoft originally estimated its proposed acquisition of Activision Blizzard would be completed by June 30, 2023. However, the FTC issued a legal challenge in December – with the hearing set for August 2 – and the UK's Competition and Markets Authority has blocked the deal, although Microsoft and now Activision Blizzard are both appealing to overturn this decision.

The Commission said press reports have indicated both companies were "seriously contemplating" closing the deal, despite the CMA's orders and the upcoming FTC hearing.

The FTC once again warned that Microsoft's ownership of Activision Blizzard would "substantially lessen competition or tend to create a monopoly" in the markets of high-performance consoles, multi-game library subscription services, and cloud gaming subscription services.

The Commission said the combined company at the end of the transaction would have the "ability and increased incentive to withhold or degrate Activision's valuable gaming content to undermine its competitors," leading to reduced consumer choice, less innovation, higher prices and/or lower quality products.

As such, it says a restraining order blocking Microsoft and Activision from closing the deal early is necessary to "maintain the status quo and prevent interim harm" until the legal proceedings have determined whether the merger violates US antitrust law.

The FTC has requested such an order is made before 8.59pm PT on Thursday, June 15, 2023, and that the block remain in place until the court has ruled on whether the FTC should be granted its preliminary injunction.

In a statement sent to GamesIndustry.biz, Microsoft president Brad Smith said: "We welcome the opportunity to present our case in federal court. We believe accelerating the legal process in the U.S. will ultimately bring more choice and competition to the market."

The Commission also offered an update on the proceedings leading up to the August 2 hearing.

The organisation said that fact discovery has been completed, expert reports have been served, and the parties have exchanged final witness lists and exhibit lists.

Expert depositions are scheduled throughout June, with pretrial briefs due in July.

You can follow the many regulatory hurdles Microsoft and Activision Blizzard face in our extensive primer.