MSFT - FTC reportedly leaning toward quick appeal of Microsoft-Activision loss

2023-07-11 19:43:27 ET

The Federal Trade Commission is reportedly leaning toward appealing its court loss in trying to stop the purchase of Activision Blizzard ( NASDAQ: ATVI ) by Microsoft ( NASDAQ: MSFT ) -- perhaps as soon as Wednesday.

The agency would be working to beat a short pause on the deal that's set to expire Friday, at midnight PT. The $69B acquisition has a termination date on July 18, in just a week, and Microsoft may be aiming to close it on Monday. But it's looking likely that an appeal will come quickly, Bloomberg reported.

A court on Tuesday ruled against the FTC, which was seeking an injunction to stop the deal, leading Activision Blizzard stock ( ATVI ) to rise. It jumped further as Microsoft, Activision and UK regulator the Competition and Markets Authority sought to pause litigation there to consider remedies.

That pointed to momentum building in favor of the acquisition, and Activision stock closed up 10% to $90.94, just below the $95/share acquisition price.

But facing a quick deadline, the FTC looks to be stepping up its fight. And it faces some hefty hurdles, Reuters notes.

Judge Jacqueline Scott Corley Tuesday found no record to contradict Microsoft's promise that it wouldn't make perennial hit game Call of Duty exclusive to its Xbox platform. And appeals courts tend to defer to judges on fact records, meaning the FTC has a heavy burden to establish that fact.

Corley said it's not enough for the FTC to argue that a merger "might" lessen competition: "The FTC must show the merger will probably substantially lessen competition." That standard came into question from some legal scholars who argued antitrust law only requires the FTC to show the deal "may" harm competition.

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