New White House FTC Nominees Could Affect MS Activision Deal

While we await the results of the federal case for a preliminary injunction vs the Microsoft Activision deal, the White House may have intervened on the FTC to change the outcome of this process.

As shared by Florian Mueller, the Biden White House recently shared their nominations to several bipartisan boards and commissions. These boards and commissions are intended to have both Democratic and Republican members, some by law and others by tradition.

It is no coincidence that that includes two Republican nominees to join Lina Khan’s FTC.  A few months ago, Christine Wilson, who was the sole Republican member of the board, resigned. Wilson cited Khan’s “defiance of legal precedent and her abuse of power to achieve desired outcomes.”

The White House press release names  Andrew N. Ferguson and Melissa Holyoak as Biden’s nominees. Both have experience in antitrust law, and are, of course, fully qualified for these nominations.

Reuters reports that “if confirmed by the Senate, the two Republicans will not change the balance of power at the FTC.” However, this could lead to changes in how the FTC oversees and enforces their mandate.

Outside of the world of gaming, Lina Khan has already been a controversial figure in politics. A few months ago, she received a grilling from Republican lawmakers, in a hearing intended to determine whether the FTC was to receive higher budgets for their work.

As you may remember, we reported that the grilling got so detailed that Lina was even asked about the Microsoft – Activision deal. She was asked point blank by Tennessee representative Diana Lynn Harshbarger why she was protecting Sony in her actions on this deal.

Of course, the FTC’s attempt to get an injunction to block the Microsoft Activision deal can no longer be reversed or taken back in any way. The trial has already ended, and we are only waiting for District Judge Jacqueline Scott Corley to release her decision.

However, this change in the lineup of the FTC could change the agency’s actions afterwards. Assuming that Judge Corley does not approve the injunction, for example, the FTC could stop pursuing these legal actions to block the deal.

Even in a Lina Khan led FTC, GOP commissioners could compel the agency to stop interfering with the deal, and move on to other business. That would mean dropping the other pending lawsuit under FTC judge D. Michael “Mike” Chappell.

 They may also be compelled to act on Congress’ call to investigate Sony, if they had been guilty of anticompetitive conduct in their push for console exclusives. These can now be possibilities with GOP commissioners serving to check and balance on Lina Khan.