An interesting twist has appeared in the Microsoft Activision deal, in the one US lawsuit Microsoft is facing around the deal, that many may have already dismissed as irrelevant.
This is the San Francisco California lawsuit often referred to as the gamers’ lawsuit, filed ostensibly by a group of gamers. This is a different lawsuit from the two lawsuits filed by the FTC. What’s key to remember here is this suit is being presided by Judge Corley, who already dismissed their case, but as a matter of procedure, allowed them to refile.
It’s also worth remembering that Sony emerged to support this gamers’ lawsuit, presumably as Sony sees that it could either stop or at least delay the completion of the deal.
As reported in Axios, the lawyers opposing the deal claim that they have an internal email that is “uncontroverted evidence that Microsoft had the intention to put its main competition, the Sony PlayStation, out of the market.”
We do know that the email was sent by Xbox Game Studios head Matt Booty, to the Xbox CFO, Tim Stuart.
In internal documents sent to the court, Microsoft characterized the email as an internal document that needs to remain sealed.
Microsoft has responded to the Axios story, but it seems their hands are tied from saying much. They state that for legal reasons, they cannot share the contents of the email. Those legal reasons may, of course, be related to the multiple regulator investigations, that compelled both Sony and Microsoft to share their internal documents to different regulatory bodies.
Microsoft cannot elaborate here, but if these documents were also obtained by the FTC, CMA, European commission, or even other regulators that observers had not paid attention to, any of those regulators could have had rules in place that stops either party from sharing their own or each other’s documents with the public.
The way it sounds, Microsoft, Activision, and Sony probably all have damning communications like this, that they were forced to share as a legal requirement.
In any case, Microsoft divulged that the email comes from 2019, a full three years before they made moves to acquire Activision.
As a matter of public record, Microsoft announced plans to acquire Zenimax Media on September 21, 2020, not long after this email was sent.
However we may feel about a rumor, Judge Corley is the only person in the position to assess this email and if it makes any difference to the acquisition.
Multiple regulators have already dismissed the console theory of harm, not only for Microsoft’s pending acquisition of Activision Blizzard King, but for the finalized acquisition of Zenimax Media before it. It may be good for fans to argue with each other, but the precedent suggests it actually isn’t that important what Microsoft’s motives are, vs what is really possible in the markets.
