FTC is still trying to kill Microsoft-Activision Blizzard deal that appeals court ruling blessed

The Federal Trade Commission is taking its fight into the 12th round in its attempt to block Microsoft Corp’s pending $68.7 billion acquisition of the gaming giant Activision Blizzard Inc.

The agency filed an appeal today after Judge Jacqueline Scott Corley denied its request for a preliminary injunction which would have put the brakes on the deal. This might be a last throw of the dice for the FTC. The deadline for the deal is July 18, with Microsoft facing a $3 billion breakup fee if the acquisition has not gone through by then.

Since Microsoft’s mega-acquisition was announced in January 2022, the company has been fighting what at times appears to be an uphill battle, both in the U.S. and abroad. The FTC waited until December of that year to launch its lawsuit against the merger, claiming that what would be the largest acquisition in the history of the tech industry would harm competition in the video game console and cloud gaming markets.

Yesterday’s ruling by Judge Corley came as a blow to the FTC, which, led by the agency’s chair, Lina Khan, has said that Microsoft’s grip on the gaming market would give the company the opportunity to out-gun competitors. Notably, the FTC believes that Microsoft would pull the $30 billion “Call of Duty” franchise from rivals’ consoles.

Microsoft has attempted to placate these fears by agreeing to license deals with Sony Group Corp. and Nintendo Co. Ltd., leading Judge Corley to rule that the merger won’t “substantially lessen competition.” The ruling echoes past failures of the FTC, which has seen little progress in recent antitrust cases against Meta Platforms Inc. and Amazon.com Inc

Khan is facing pressure right now from all sides, with the Republican-led House Judiciary Committee today announcing an oversight hearing of the FTC under Khan. The grilling will explore “mismanagement of the FTC and its disregard for ethics and congressional oversight.”

The FTC now needs the Ninth Circuit Court of Appeals to issue an emergency stay that will extend a previous temporary restraining order set to expire on July 14. It’s not clear how the FTC will succeed, only telling media, “In the coming days, we’ll be announcing our next step to continue our fight to preserve competition and protect consumers.”

“The District Court’s ruling makes crystal clear that this acquisition is good for both competition and consumers,” Brad Smith, Microsoft’s vice chair and president, said in a statement. “We’re disappointed that the FTC is continuing to pursue what has become a demonstrably weak case, and we will oppose further efforts to delay the ability to move forward.”

Though Microsoft is looking like it will get what it wants, there’s still plenty of fighting left to do. Right after yesterday’s ruling by Corley, the U.K.’s Competition and Markets Authority announced a “new merger investigation” in which “new remedies” will be sought for the U.K. to give the green light to the deal. In May, the European Commission, the European Union’s executive branch, did just that and approved the merger.

Activision Blizzard sounds upbeat, today expressing that the “facts haven’t changed.”

“We’re confident the U.S. will remain among the 39 countries where the merger can close,” a company spokesperson said. “We look forward to reinforcing the strength of our case in court, again.”

Photo: Robert Scoble/Flickr