FTC’s final appeal to block the Microsoft Activision deal has been denied.
As reported by The Verge, the 9th Circuit Court of Appeals has rejected FTC’s request. In their decision they simply state “The motion for injunctive relief is denied.” They cite two cases defining the standard for the FTC to obtain a preliminary injunction, and the standard for an injunction that is pending an appeal.
Brad Smith shared this statement on Twitter:
“We appreciate the Ninth Circuit’s swift response denying the FTC’s motion to further delay the Activision deal. This brings us another step closer to the finish line in this marathon of global regulatory reviews.”
While the FTC can still take some actions in regards to the deal, they simply do not have any more recourse to stop Microsoft and Activision from finalizing the deal.
Now, one of the reasons the 9th Circuit denied the FTC’s request is the fact that the regulator can investigate the merger and force them to break up after the deal is made.
The FTC has been insisting the size and scale of the acquisition is reason enough to block the deal. However, if they decide to force a breakup after the acquisition, they will have to come up with better arguments to do so.
That kind of work is not new to the FTC. Famously, the FTC investigated Microsoft if they held a monopoly in the PC operating system market. That case would lead to a Department of Justice investigation, and MS would actually be found guilty of violating antitrust law. Microsoft would eventually settle with the US government, by changing their business practices.
There is also the matter of the case the FTC filed under their courts, to be heard by FTC Judge Michael Chappell. It isn’t clear if that case will push through anymore. Whatever Judge Chappell decides, the FTC could actually disregard his verdict if they wanted. The next course of action they would have pursued if Judge Chappell decided vs them, would have been the TRO / preliminary injunction case they already lost.
The FTC is definitely itching to find Microsoft make a mistake in the next few months. They could fail in one or several commitments they made to Nintendo and cloud gaming companies on Call of Duty. Or, they could be compelled by unexpected circumstances to pull the exclusivity card on games that are already multiplatform, such as Overwatch. If Microsoft makes a mistake, they will be aiming to pounce, but given their current track record, it would have to be something quite grievous for the FTC to succeed.
