Microsoft's acquisition of Activison Blizzard
- Thread starter Satoru
- Start date
DarkMage is in there coping....
Below is all of IDAS last post, with a small bit that is irrelevant at the top cut out.
NEXT KEY DATES:
- May 22nd 2023: provisional deadline for a decision from the EC (it could happen as soon as May 15th according to Reuters)
- May 24th 2023: deadline for an appeal to the Competition Appeal Tribunal (CAT) in UK.
- May 2023: decision from the SAMR in China.
- May 2023: decision from the Korea Fair Trade Commission.
- May 2023: final decision from the Competition Tribunal in South Africa.
- May/June 2023: decisions from Turkey and Canada.
- June 9th 2023: decision from New Zealand.
- July 18th 2023: The end of the second extension and final outside date in the merger agreement. If MS quits by that date they have to pay a termination fee of $3,000,000,000; if they don't, they'll have to renegotiate the outside date with ABK.
- August 2nd 2023: beginning of the FTC in-house trial.
- Early 2024: decision from the FTC administrative law judge.
- Early 2024: decision from CAT (if there was an appeal)
- Anything beyond that: unknown
The appeal process against the CMA in UK
Thanks to @Pixis | Post 1,939
OK so there's some confusion here about what can and cannot be appealed and how this works with the CMA, and then various linking to CAT and/or court cases involving the CMA. I will try and break this down slightly (bearing in mind this no easy task!).
We are talking about a merger here which, for reference, the CMA are given jurisdiction to review (provided it meets the requirements therein) pursuant to the Enterprise Act in the UK. Under the Enterprise Act, parties aggrieved by a decision can appeal to CAT - however, and this is the crucial component - CAT will only apply a judicial review standard when reviewing a decision. In other words, they will not engage in the substantive merits of the CMA's decision but look only as to whether the way in which that decision was made was illegal or otherwise had some procedural impropriety involved (broadly speaking). As such, CAT will never (and cannot, under the Enterprise Act) review a decision of the CMA solely based on the conclusion the CMA came to.
If CAT determines any of the above has been engaged, it will send the decision back to the CMA again (typically). The CMA must then engage the review process again (but of course fixing the procedural issue that arose) and then it may make another decision. If the CMA makes the same decision - that is essentially the end of the line of appeals.
There is an extremely limited secondary appeal process under the Enterprise Act where if CAT permits, it can allow an appeal to the Court of Appeal by an afflicted party but only on a question of law (there is also a very very difficult appeal procedure directly to the COA if CAT deny the appeal, again on a question of law basis). A question of law can only arise effectively if CAT in its review reached a conclusion either a) on which no reasonable person could have come to or b) where there is no evidence to support a finding of fact on which CAT's decision was based. These are extremely high thresholds and again only, when boiled down, go to CAT's judicial review of CMA's decision. As such, there is again no means of actually appealing the conclusions made by the CAT (and in turn the CMA) in respect of the merits of their decision vis-a-vis a merger.
If you therefore see the CMA engaging in high court decisions, or decisions re fines like the ones above - these are not typically in respect of mergers but in respect of unrelated provisions of the Competition Act (which is another prominent piece of competition legislation in the UK) which deal with fixing agreements, penalties and occasionally abuses of dominant position (as well as some costs cases).
Source - me, M&A lawyer, qualified in the UK( involved in CMA cases, Commission cases and offshore competition cases).
Hope that helps!
Thanks to @CeeCee | Post 43,947
Right - y'all made me dig out my login for the first time in three years so you better all appreciate this.
First up, I have a professional background related to this issue.
Second, There are at least 4 major errors of fact or understanding which are running endemic in the thread:
Below is all of IDAS last post, with a small bit that is irrelevant at the top cut out.
NEXT KEY DATES:
- May 22nd 2023: provisional deadline for a decision from the EC (it could happen as soon as May 15th according to Reuters)
- May 24th 2023: deadline for an appeal to the Competition Appeal Tribunal (CAT) in UK.
- May 2023: decision from the SAMR in China.
- May 2023: decision from the Korea Fair Trade Commission.
- May 2023: final decision from the Competition Tribunal in South Africa.
- May/June 2023: decisions from Turkey and Canada.
- June 9th 2023: decision from New Zealand.
- July 18th 2023: The end of the second extension and final outside date in the merger agreement. If MS quits by that date they have to pay a termination fee of $3,000,000,000; if they don't, they'll have to renegotiate the outside date with ABK.
- August 2nd 2023: beginning of the FTC in-house trial.
- Early 2024: decision from the FTC administrative law judge.
- Early 2024: decision from CAT (if there was an appeal)
- Anything beyond that: unknown
The appeal process against the CMA in UK
Thanks to @Pixis | Post 1,939
OK so there's some confusion here about what can and cannot be appealed and how this works with the CMA, and then various linking to CAT and/or court cases involving the CMA. I will try and break this down slightly (bearing in mind this no easy task!).
We are talking about a merger here which, for reference, the CMA are given jurisdiction to review (provided it meets the requirements therein) pursuant to the Enterprise Act in the UK. Under the Enterprise Act, parties aggrieved by a decision can appeal to CAT - however, and this is the crucial component - CAT will only apply a judicial review standard when reviewing a decision. In other words, they will not engage in the substantive merits of the CMA's decision but look only as to whether the way in which that decision was made was illegal or otherwise had some procedural impropriety involved (broadly speaking). As such, CAT will never (and cannot, under the Enterprise Act) review a decision of the CMA solely based on the conclusion the CMA came to.
If CAT determines any of the above has been engaged, it will send the decision back to the CMA again (typically). The CMA must then engage the review process again (but of course fixing the procedural issue that arose) and then it may make another decision. If the CMA makes the same decision - that is essentially the end of the line of appeals.
There is an extremely limited secondary appeal process under the Enterprise Act where if CAT permits, it can allow an appeal to the Court of Appeal by an afflicted party but only on a question of law (there is also a very very difficult appeal procedure directly to the COA if CAT deny the appeal, again on a question of law basis). A question of law can only arise effectively if CAT in its review reached a conclusion either a) on which no reasonable person could have come to or b) where there is no evidence to support a finding of fact on which CAT's decision was based. These are extremely high thresholds and again only, when boiled down, go to CAT's judicial review of CMA's decision. As such, there is again no means of actually appealing the conclusions made by the CAT (and in turn the CMA) in respect of the merits of their decision vis-a-vis a merger.
If you therefore see the CMA engaging in high court decisions, or decisions re fines like the ones above - these are not typically in respect of mergers but in respect of unrelated provisions of the Competition Act (which is another prominent piece of competition legislation in the UK) which deal with fixing agreements, penalties and occasionally abuses of dominant position (as well as some costs cases).
Source - me, M&A lawyer, qualified in the UK( involved in CMA cases, Commission cases and offshore competition cases).
Hope that helps!
Thanks to @CeeCee | Post 43,947
Right - y'all made me dig out my login for the first time in three years so you better all appreciate this.
First up, I have a professional background related to this issue.
Second, There are at least 4 major errors of fact or understanding which are running endemic in the thread:
- That the CMA is in any way subject to government intervention/"just take them to court". The appeal process goes to a tribunal, which can only intervene if their action was illegal, had incorrect process or was irrational. There is no other route to appeal to the courts and the UK Government cannot intervene even if they want to. The CMA is not run or controlled by the Government - attacking the CMA means you are attacking an independent organisation, not the UK Government or the Conservative Party.
- That irrational carries a colloquial meaning. Just because you think a conclusion is wrong does not make it irrational. Irrational, in this context means that it is so unreasonable that no rational person could reasonably have reached this conclusion.
- That the probability of the appeal succeeding is anything other than very low. Success rate at the CAT is not high, and a success would just mean that the CMA has to remake the decision having fixed whatever the issue in their process was.
- That the CMA is a political body, "overpaid", "idiots", or any other ad-hominem attack. The CMA is an independent body, staffed by people with deep and extensive knowledge and experience of competition law and issues, who are paid less than they could earn in the private sector (even quite senior staff are generally paid less than £100k). From professional experience, I can confidently say that the quality of the CMA's work and people is highly-regarded by professionals in the field.
Got a saying in Jamaica,
”not everything you hear you must believe”
loads of sites are making money coming up with clickbait………
to surmise, MS will appeal, lose time, money, gaming relevance and the deal will remain blocked.
Also: they completely ignored what Idas said because it fully shuts down all hope of the deal going through. Amazing.
Thanks for the very helpful write-up! I wonder what constitutes a procedural error? Probably not likely for there to be one as it would be hard to argue that they didn't consider everything in the process, they even dropped the console market concerns based on "considering everything" after all. I also doubt that the accusations of collusion between the cma and ftc thrown out by Bobby Kotick carry any weight as well.
Now some fools are thinking it’s bad the CMA can stop multi billion mergers and others are really convinced the CMA’s arguments are faulty. Yeah, so faulty that those arguments were the same MS wanted to be pursuit. They made it clear that console gaming wasn’t their focus anymore and that cloud gaming was the future… so now both MS and bots are crying and claiming the block holds no water because they used it against MS. Sweeties, you made your bed and now lie on it.
It's so poetic, loads of Xbox podcasts had that 'Uno reverso' card on their thumbnails, claiming MSFT had turned the tables on Sony and all this nonsense when Microsoft got their politicians after Sony...
But this is the REAL uno reverso. This is the CMA listening to MSFT / Xbox and all their fans say 'Cloud is the future' and then take that and go... okay, if it is the future then you have a huge advantage due to infrastructure, gaming presence and recently buying publishers and 3rd party developers, so 'No, you're not allowed buy anymore'.
Once again the big mouths of MSFT execs and Xbox fans fuck things up for themselves.
If the EU approves the deal, they're going to declare victory, regardless of how inaccurate it would be.
Seeing their arrogance blow up in their face and their words used against them has to be the ultimate humiliation for Xbots. The icing on the cake will be when Xbox ceases to exist as a hardware platform because they tried to take this moneybags shortcut instead of investing in their studios, innovating, and being competitive.
Best case scenario is actually the EU approving and emboldening Microsoft to fight the CMA, which will cost them billions more than the 3 they've already lost on this acquisition (plus legal fees). Same result, and it ties them up in litigation for YEARS with nothing to show for it at the end.
It means Microsoft's chances of overturning the CMA's decision are low. The CAT doesn't rule based on whether they agree with the decision, just that the process they used to come to that decision makes sense.
Ok, just asking because these quotes are old : pixies from Oct 2022 and Ceecee's from last month
They seem to be accurate as far as how the cma and CAT works. That wouldn't have changed.
But Xbots are still hoping otherwise, aren't they?
Means that very likely the CMA decision will kill the acquisition because MS has very low changes of reversing the current decision by appealing it. And the acquisition requires the approvals from all the regulators to be completed.
Also, since MS won't be able to achieve to complete the acquisition before mid July, MS will pay $3 Billions more to the ABK shareholders as compensation on top of the other one they already paid.
Just read up on the cma process. I wouldn't be too worried about what they think. lmao
Yeah the user pixis as far as back as the phase 2 findings was saying how this deal is closer to dying.
Most the people on era didn't challenge him as his a M&A lawyer in the UK.