Sony is officially f*ghting Microsoft's subpoena in FTC's Activision Blizzard merger case: public filing confirms PlayStation maker brought motion to quash on Friday

This is a follow-up to my Saturday (February 4) post, First procedural dispute between Sony and Microsoft in Activision Blizzard FTC proceeding: Sony suggests it will cost many millions of dollars to answer Microsoft's questions. In that one, I reported on a motion that Sony had filed on Thursday and which became publicly accessible late on Friday. Sony asked the Federal Trade Commission's Chief (and only) Administrative Law Judge (ALJ) D. Michael Chappell for a fourth extension of time for its motion to quash or limit Microsoft's subpoena. See also Sony doesn't want to provide documents and/or witnesses Microsoft requested in Federal Trade Commission adjudicative proceeding regarding its Activision Blizzard deal.

Microsoft had previously waived its right to oppose three Sony motions for an extension. But when Sony wanted a fourth extension, Microsoft's position apparently came down to "enough is enough." Therefore, ALJ Chappell would have had to resolve the scheduling dispute. But he never had to:

A notice that was filed yesterday and just became public today (PDF) says that on Friday, Sony Interactive Entertainment "confidentially filed with [the FTC's in-house court] a motion to limit or quash Microsoft’s subpoena" and, therefore, "withdraws as moot its motion for extension of time."

The filing reveals that also on Friday, but prior to the motion to quash, Sony "filed a motion for leave to file a proposed reply in support of its motion for extension of time to move to limit or quash Microsoft’s subpoena." That means Sony asked ALJ Chappell for permission to reply to an opposition brief by Microsoft. Neither that motion for leave nor Microsoft's opposition brief are publicly discoverable by the time of publication of this post. But there must have been an opposition brief by Microsoft as Sony would otherwise not have had anything to (ask for permission to) reply to.

There are only two possible reasons for which Sony abandoned its motion for leave to file a reply and brought a motion to quash right away:

ALJ Chappell may have told Sony's counsel informally that the motion was going to be denied because a fourth extension is one too many.

Sony may have tried to reach ALJ Chappell's office on Friday, couldn't find out what was going to happen, and then brought its motion to quash because it was--in the absence of an extension--running out of time.

Either way, it shows that Microsoft was right to oppose Sony's fourth motion for an extension of time. If Sony had reasonably requested more time, the judge would simply have granted Sony's motion on Friday.

Sony is not just f*ghting Microsoft's subpoena: it's surprising, if not shocking, that Sony is also unwilling to comply with the FTC's own subpoena. First they asked the FTC to bring this case like no one else did. Then they don't want to answer questions. It's possible that ALJ Chappell also found that behavior bewildering, and that he had this in mind when he saw Sony's motion for a fourth extension of time.

The FTC should generally think again about whether it wants to follow that lawyer--a former FTC official and now a Cleary Gottlieb partner. He also urged the FTC to take a losing position in the Meta-Within context (see my analysis of the order denying the FTC's motion for a preliminary injunction) and told the FTC last week, via Bloomberg, not to worry about losses. Of course he would say that because he knows the FTC can't legally block Microsoft's purchase of Activision Blizzard, but on Sony's behalf he wants them to try at any rate...

There has been some misreporting by others with respect to Sony's motion. I saw some tweets according to which Sony's motion--which was simply incorrect--had been granted and the new deadline would have been this week's Friday (February 10). The source that was credited in those tweets--an EU antitrust lawyer who uses the "Idas" pseudonym to comment on a discussion board for gamers--normally provides accurate information about the Microsoft-ActivisionBlizzard merger reviews around the globe, but in this case he was wrong: his misconception presumably was that he saw the ALJ's order granting the third motion for an extension, but that one had been agreed upon between Sony and Microsoft, and the question was what was going to happen to the fourth request for more time. On Twitter, I--as a litigation watcher who has been following countless U.S. patent and antitrust cases over the past 12+ years--warned people against relying on Idas's unfortunate misinterpretation:

https://twitter.com/FOSSpatents/status/1622583147434049542?t=arG80lLfvlAjhsdEC6fpgA&s=09

Well, the information on the judge having granted the request for an extension is NOT reliable. The judge granted a DIFFERENT extension. A decision on that particular motion for a 4th extension has NOT been published yet. I believe we will see that decision later today.

— Florian Mueller (@FOSSpatents) February 6, 2023

;s=09
I don't mean to imply that Idas wanted to disinform anyone. He's tried to be totally nonjudgmental about those cases.

Based on Sony's February 6 notice of withdrawal that the FTC published today, we know that rumors of Sony's motion for an extension of time having been granted were greatly exaggerated. The motion was denied for all practical intents and purposes, which is why Sony gave up on it and filed its motion to quash.

I have a problem with the fact that Sony's motion was filed confidentially. It can't remain sealed forever in my opinion: this is a public proceeding. Sony must at least make a public redacted version available, should the motion contain any confidential business information.

Sony may just not want the world to see how uncooperative it is in a proceeding that the FTC brought primarily because of Sony complaining over how it believes to be impacted by the deal. It reserved its rights to f*ght the FTC's subpoena, it is officially f*ghting Microsoft's subpoena, and it will likely bring one or more motions to quash in the Northern District of California, where Sony has been subpoenaed already in the so-called gamers' (actually lawyers') lawsuit.

While we're on the subject of that private action in California, Microsoft and the class-action lawyers submitted a proposed briefing schedule yesterday:

 https://www.documentcloud .. efing-schedule

That filing reflects a cooperative spirit: if approved by Judge Corley (who said at the status conference on Thursday that she'd be fine with anything that meets her key parameter, which is the latest filing date for a reply brief), Microsoft will have until March 2 to file its opposition to the motion for a preliminary injunction, but the class-action lawyers get an extra three days for their opposition to Microsoft's motion to dismiss.

[Update at 9:42 AM Pacific Time] Judge Corley has granted the stipulation and set the deadlines accordingly. [/Update]

A few days ago I published a chart that shows the key deadlines in the Microsoft-ActivisionBlizzard proceedings in the U.S. (FTC and Northern District of California), UK, EU, and New Zealand (click on the image to enlarge):



 http://www.fosspatents.co .. softs.html?m=1

view video

it's funny that Sony's annoying the fu*k outta MS atm and once the deal goes through, MS is still gonna be forced to keep COD on PS despite not wanting to

How can you want to f*ght the deal because it will supposedly cripple your business but not be willing to prove it?

Frauds

The uk just blocked that sh*t




Now Uncle Tom and the fat white goonie finna cry themselves to sleep

view image

Hoggystyle said The uk just blocked that sh*t Now Uncle Tom and the fat white goonie finna cry themselves to sleep view image

Let’s bet then

Hoggystyle said The uk just blocked that sh*t Now Uncle Tom and the fat white goonie finna cry themselves to sleep view image

Hoggy's fat a*s can't read. They didn't block sh*t. Quite the opposite.

view image

NoWorries said Well, to be accurate, they've blocked the deal in its current form. And have asked Microsoft to commit to keeping COD multiplat forever. Which is honestly a good tradeoff for MS.

There were always expected to be remedies of some sort from the CMA and/or EC. The fact that it wasn't outright blocked without acceptable remedies like some people around here were praying for is good news.

Whether MS can cook up acceptable behavioral remedies (which sounds at least somewhat promising from the wording), we still got maybe multiple more months of waiting to find out.

NoWorries said Well yeah, all of that is pretty self evident lol. But yeah as a matter of law, the deal itself, has been blocked by the regulator at this point.

No, it hasn't. Blocking it would mean there were no acceptable remedies and there would be no further negotiations. It would be flat out dead.

The CMA has outlined acceptable structural remedies and will be hearing behavioral remedies which weren't considered in this phase to decide if any of those will be sufficient.

These are just provisional findings, not a final ruling. Self evident.

Krazie said No, it hasn't. Blocking it would mean there were no acceptable remedies and there would be no further negotiations. It would be flat out dead. The CMA has outlined acceptable structural remedies and will be hearing behavioral remedies which weren't considered in this phase to decide if any of those will be sufficient. These are just provisional findings, not a final ruling. Self evident.

Where you copy and paste this reply from

If this deal doesn't go through, MS just got 69 billion to go buy a bunch of other sh*t

sh*t getting spooky ngl

They should f*ght that last bullsh*t MS tried pulling

Liquid-Science said If this deal doesn't go through, MS just got 69 billion to go buy a bunch of other sh*t

MS has always had 69 billion to buy other sh*t hasn't made a difference these past gens

Meanwhile seems nobody bats an eye at a Chinese company, Tencent, buying up majority shares in numerous American and Euro developers.

sony some bi*ches for real

D1dnt read said MS has always had 69 billion to buy other sh*t hasn't made a difference these past gens

Xbox didn't have access to that MS wallet back then

Microsoft made the Zenimax and ABK purchases...Microsoft is going in on gaming

totally different circumstances now

crazy how some ppl saying deal is blocked when the official court documents say the exact opposite, smh.

MS finally admitted with what people with half a brain already knew, that Gamepass has been eating their lunch and does not lead to more sales like they been saying. Part of the reason why they release numbers that lead to no where.

EU getting at them for misleading them before, that's why they're catching hell over this.

CMA is using MS's own stuff against them. The little white lies are what's making this bump in the road a little more than a speed bump.

Deal isn't blocked though.

Liquid-Science said Xbox didn't have access to that MS wallet back then Microsoft made the Zenimax and ABK purchases...Microsoft is going in on gaming totally different circumstances now

The fu*k is you talmbout

NoWorries said Right. So the deal, as originally structured, cannot proceed. In other words, it has been blocked and a new deal must be crafted containing specific provisions and a*surances to regulators. It’s just semantics, but that’s one of the major bases of western law lol, semantics. I get what y’all are saying though the deal hasn’t been k*lled outright.

In other simpler words, the acquisition itself has not been blocked.

Here's some reading for you if it helps

view image

Krazie said Hoggy's fat a*s can't read. They didn't block sh*t. Quite the opposite. view image

Uk n*ggas told ms to suck a d*ck sell cod or the deal ain’t happening u fat fu*k

WhoSentU said Meanwhile seems nobody bats an eye at a Chinese company, Tencent, buying up majority shares in numerous American and Euro developers.

Tencent get to do whatever they want, meanwhile everyone cry like bi*ches when Microsoft gets to buying sh*t

Epitome said Tencent get to do whatever they want, meanwhile everyone cry like bi*ches when Microsoft gets to buying sh*t

Yup, and I'm sure they'll pick up COD as well if Microsoft did go the divestiture route.

We'll all be better off with that outcome, I'm sure.

EA – $38.7 billion
Take-Two – $18.8 billion (pre-Zynga purchase)
Ubisoft – $7.4 billion
Square Enix - $5.9 billion
Capcom- $4.8 billion