This whole thing makes it look like the FTC caught wind of whatever capitulation was happening in the UK when they filed for a preliminary injunction.
Thank god that Marcus Smith was as unamused by the farce that is this adjournment request as everyone else.
Relevant tweets from Derek as I wasn't able to follow along live.
Why can't we see the new deal?
Marcus Smith casts doubt on new deal being materially different. Beard later argues it's in relation to what is being acquired (within ABK?), not who is acquiring whom.
Whatever happened must have happened in the last 3 weeks, or the parties aren't squeaky clean
CMA needs to prove to the judge that there have been material changes in circumstances or special reasons under section 41-3 of the enterprise act, which they cannot do at this stage (see first tweet)
The relevant legislation
The decision of the [F1CMA] under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 35(3) or (as the case may be) 36(2) unless there has been a material change of circumstances since the preparation of the report or the [F1CMA] otherwise has a special reason for deciding differently.
Basically, the CMA's decision might not be consistent with its proposed order (to block) and parties will be arguing in court over the old order while a restructured deal is being considered.
What's confusing to me is how the new deal applies to the proposed order and decision relating to the old deal. I understand why the CMA does not want it quashed (legal precedent), and I have to imagine it's explained somewhere else in the legislation.
It's claimed that this course of action is not in response to the FTC's failure in court, though you can see Microsoft and ABK lawyers arguing that the FTC is relevant (comity?) which the judge disagrees with. He also wants to understand why the late June adjournment was opposed - which is why I said earlier that what happened must have happened in the last 3 weeks, because otherwise it looks suss:
What I was evidently wrong about was fervour of the CMA's dedication to protecting consumers. It could be an air of impartiality and abidance by their duty, but they're clearly leaning towards receiving notice of a restructured deal from Microsoft, determining it to be a new relevant merger situation, and waving it through based on concessions Microsoft has indicated they will be making throughout their discussions with CMA on a workable path that preempts SLC concerns. The whole "we don't know what we'll do" act is just that.
