Microsoft has issued its official response to the FTC lawsuit seeking to block its $69 billion dollar merger with Activision.
The response, which you can read courtesy of Game Informer here, reiterates many arguments that Microsoft has already made in public, such as Xbox having a much smaller overall share of the video game market than both Nintendo and Sony, almost nothing in the mobile gaming market, and also promises to keep Call of Duty on rival platforms. Microsoft has even promised to bring Call of Duty to entirely new platforms.
However, Microsoft's official legal response to the case also makes several new arguments saying that the lawsuit itself is unconstitutional. Check out page 34 of the Answer and Defenses document to see what Microsoft's lawyers have cooked up.
First, there are several arguments made that accuse the FTC of "improper selective enforcement of antitrust laws." After that, Microsoft says the FTC as an organization article two of the US Constitution (that's the one that sets the rules for who can hold public office), and that the whole case violates article 3 of the constitution (that's the one that creates the organizational structure for the US legal system).
Microsoft also makes a few arguments saying that the FTC's case violates its fifth amendment rights to due process. "The Commission’s procedures arbitrarily subject Microsoft to administrative proceedings rather than to proceedings before an Article III judge in violation of Microsoft’s right to Equal Protection under the Fifth Amendment." Additionally, "The Commission’s procedures violate Microsoft’s right to procedural due process under the Due Process Clause of the Fifth Amendment."
Whether these arguments have any weight will be up to a judge to decide, but it’s not uncommon for a major corporation with huge budgets for legal fees to throw everything they can at a case just to see what sticks. A court date for Microsoft and the FTC has been set for August 2023, more than a month after Microsoft and Activision expected the deal to close.
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