Microsoft & CMA Argue on Appeal Hearing Date for Activision Blizzard Acquisition; Provisional Dates Set

Published: May 30, 2023 12:46 PM /


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Today the British Competitions Appeal Tribunal hosted a case management conference to indicate the calendar of Microsoft's appeal against the CMA's decision to block the acquisition of Activision Blizzard

The CMA's attorney and Microsoft's argued over the timeline, with the former seeking to delay the hearing on the merits that will lead to the final decision, and Microsoft seeking to hasten the process. 

Justice Marcus Smith seemed to lean toward haste and scheduled in "heavy pencil" the hearing in the "fortnight" starting on July 24 and August 7. He also mentioned that the ten business days within that window are probably "dramatic overkill" for the hearing, and postulated that six days would be a more reasonable goal. The goal of having a two weeks window is to offer flexibility in terms of specific dates. 

Smith also added that he might consider delaying that window, but he would do it "with great regret and only if absolutely essential for fairness," or alternatively ask Microsoft to eject certain evidence it intends to submit in order to expedite proceedings and preserve the mentioned window.

Another case management conference has been scheduled for June 12, with Microsoft and the CMA expected to submit their documents for the hearing before then. The judge expects to crystallize the schedule of the hearing at that conference. 

Activision has also played a role in the conference, with its attorney mentioning that CEO Bobby Kotick himself is willing to answer direct questions on the matter (albeit it would be unusual) and criticizing the CMA's behavior ignoring the deals made with third-party cloud providers as "uncommercial, unreal, and unworldly." The Judge mentioned that, if permitted, Activision should include their intervention within Microsoft's filing to avoid duplicates, to be presented by June 7.

Basically, Activision has been allowed to participate as long as its arguments are presented by the deadline together with Microsoft's and don't simply duplicate them. The judge also ruled that other parties wanting to intervene will have to submit a statement by June 2 at 5:00 pm BST, as it's clear that they had plenty of time to consider that already. 

Recently, the European Union approved the deal including proposed remedies to level the competitive playing field on the cloud market, which Microsoft agreed to. A few days ago, we learned that the deal was approved by the Chinese authority, while this morning South Korea's regulator also cleared the deal, bringing the number of countries that officially cleared the acquisition to 38.

This leaves the British CMA isolated in its stance against the deal (followed by an appeal from Microsoft including some rather firm rebuttals of the ruling), with the American FTC matching its opposition, but having to go through a legal process to actually be able to block it. 

In the meanwhile, a judge of the United States District Court Northern District of California denied the preliminary injunction requested against Microsoft in the so-called "gamers' lawsuit" which also aims to prevent the acquisition.


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