From Idas on Reera:
Reading the expedite motion from MS/ABK, a few highlights.
In summary:
- They don’t want to delay the process, they want to start sooner and have 5 a day-hearing instead of 2.
- Almost everything was ready for the administrative process, only expert depositions remain.
- MS suggests that the FTC has been stalling the process since December 2022.
- MS didn’t expect a decision from the administrative judge until December 2023 - January 2024, at the earliest.
- It looks like the FTC's motion for a temporary restraining order relies heavily on 350 pages of reports submitted by their expert, Dr. Robin Lee.
For the express purpose of being ready to conduct a fulsome hearing in federal court in the event the FTC sought a preliminary injunction (not two simultaneous proceedings in a federal and an administrative court), the parties agreed to expedite pretrial matters in an FTC administrative proceeding that has been pending since December. The parties have completed fact discovery and exchanged witness lists, exhibit lists, and expert reports. Only one step remains before the case is ready for trial: expert depositions, which are currently set to take place between June 21 and 30. (Page 3)
The case has been moving at this fast pace because time is of the essence. The merger agreement by which Microsoft seeks to acquire Activision has a termination date of July 18, 2023. The agreement also contains a $3 billion termination fee. The FTC filed an administrative complaint in December 2022. But they chose to file this suit—seeking a court order of indeterminate length to prevent the transaction from closing—6 months after filing its administrative complaint and only 6 weeks before the termination date. The FTC knows that a preliminary injunction decision will determine whether the transaction succeeds or fails, yet counsel claims that the preliminary injunction is required only to ensure there is time to complete the administrative process. Let there be no doubt, a preliminary injunction ruling is the only decision that matters under these challenging deadlines
(Page 3)
The FTC hearing is set to start after the termination date. There will be no decision until late December 2023 or early January 2024 at the earliest. That decision will not be final because the FTC recently concluded that such decisions are recommendations subject to the review of the Commissioners who authorized the complaint—a lengthy process that always results in a decision in the FTC's favor. Defendants' only recourse at that point is an appeal to a circuit court. Overall, this process takes several years—a timeframe no merger could survive. (Page 4)
To be clear, Defendants have no interest in delaying the resolution of this matter. But Defendants respectfully submit that a hearing of two days is not enough time to present the issues in this case and that further discussion of the schedule is warranted. The stakes of this case are high, and it involves important legal, factual, and economic issues. At minimum, Defendants believe the Court should allow the hearing to extend into the week of June 26, to permit expert discovery to conclude before the conclusion of the hearing, particularly given that the FTC's motion for a temporary restraining order relies heavily on the reports submitted by their expert, Dr. Robin Lee. (Page 4)
Shortly after the deal was announced, the FTC opened an investigation into the proposed acquisition. During the FTC's nearly yearlong investigation, Defendants produced millions of documents and sat for several investigational hearings. On December 8, 2022, the FTC filed an administrative complaint before the FTC's Office of Administrative Law Judges, seeking to bar the transaction under Section 7 of the Clayton Act and Section 5 of the FTC Act. Unlike in most other merger challenges where the FTC simultaneously files a case in federal court—because only a federal court has the power to preliminarily enjoin the transaction, the FTC delayed filing a federal action until Monday. Instead, the FTC initially scheduled an administrative hearing before the FTC's Chief ALJ on an eight-month calendar rather than a five-month calendar (the "Part 3 proceeding"). That had the effect of setting the hearing for August 2, 2023—when there was no preliminary-injunction proceeding and when it was clear that the transaction's termination date (July 18, 2023) was weeks before the hearing would even begin. (Page 5)
To be prepared for the possibility that the FTC might eventually file a motion for preliminary injunction in federal court in this matter, the parties have been cooperating to expedite
pretrial matters so that a federal judge can decide the matter in a timely fashion. Fact discovery is complete. And expert discovery will close on June 23 (with one deposition taking place on June 30, by agreement of the parties). The FTC has disclosed one expert who has submitted over 350 pages of reports (currently set to be deposed on June 21), and whom they principally rely upon in seeking emergency relief from this Court. Defendants have disclosed three experts (currently set to be deposed between June 21 and 30).
(Page 6)
Defendants see two issues with the Court's suggested path forward, both of which would benefit from further discussion. First, the hearing date is currently set during expert discovery. While Defendants are prepared to accelerate the pace of expert discovery, Defendants submit that the parties and Court would benefit from having the experts deposed prior to the close of trial. That is particularly so because the FTC's motion for a temporary restraining order relies heavily on the testimony of its expert and the reports he submitted—making it all the more important that the Court have a full and complete expert record when adjudicating the FTC's motion. (Page 7)
Second, while Defendants believe the evidence can be presented expeditiously, Defendants are not aware of situations where a matter of this scope and importance was decided on just two days of testimony. On the contrary, federal court preliminary injunction hearings typically last at least five days, presumably because the hearing is the only one that will ever take place. (Page 7)
Counsel for Microsoft have conferred with all other counsel. Defendant Activision supports this request for an expedited Initial Case Management Conference. Plaintiff Federal Trade Commission has declined to join a request for an expedited Initial Case Management Conference. (Page 8)
