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Microsoft has amended its response to a Federal Trade Commission lawsuit seeking to block its $69 billion acquisition of Activision Blizzard, no longer arguing that the FTC is inherently unconstitutional, but instead citing the company’s Fifth Amendment. denied the right.
Microsoft spokesman David Cuddy told Axios’ Stephen Totilo that the company had “considered all potential arguments internally and had to drop these defenses before filing. The .FTC has an important mission to protect competition and consumers, and we have swiftly updated our response to omit language that suggests otherwise under the Constitution.” Cuddy told Axios.
Microsoft’s original Federal Trade Commission response (PDF) states that the lawsuit against Microsoft is void. United States Constitution and Separation of Powers. Another point argued that the use of administrative law judges rather than the typical life-term judges was a violation of Article 3.
Based on these allegations, Microsoft also argues that the FTC’s procedures, the nature of its administrative proceedings, and the fact that the commission “pre-determined the merits” of its litigation, have led to its refusal to due process under the Fifth Amendment. It claimed that Microsoft’s rights had been violated.
Microsoft’s revised answer (PDF) removes the constitutional claim from the rebuttal. Acquisition of Activision does not limit game subscription and cloud gaming services, sticking to the software giant’s broad claims that it offers to license games such as: call of duty Against Nintendo, Valve, and other platforms, the FTC’s claims are “too speculative” and unenforceable.
According to Axios, Activision made the same allegations about its constitutional rights under the FTC’s investigations and proceedings in its initial response, but Axios said it also dropped that aspect.
A Familiar Timely Discussion
The corporate backlash against regulators comes as the U.S. Supreme Court considers a lawsuit that could give corporations more power to pursue constitutional defenses against regulators. Axon Enterprise v. Federal Trade Commission is about a body camera company that made an acquisition of a competitor investigated by the FTC. Axon has filed for an injunction, alleging that the FTC and its arbitration process are unconstitutional, a claim that was partly reflected in his original Microsoft response.
Microsoft, a company well versed in the scope and procedures of the FTC, has more broadly sought to position itself as a vulgar underdog rather than an anti-competitive force in certain gaming markets. In The Wall Street Journal, Microsoft’s vice chairman and president, Brad Smith, put his company third in the console market, with little relevance for his games on mobile, and monthly games he’s centered around subscriptions. It described itself as the first major company to innovate.
Microsoft and Activision Blizzard face numerous other allegations of unfair practices. call of duty Gamer sued Microsoft in late December, arguing that the acquisition would allow it to “close out rivals, limit output, reduce consumer choice, raise prices, and further stifle competition.” The European Commission is investigating the deal, and the UK Competition and Markets Authority has launched a “Phase 2” investigation.
