The US Federal Trade Commission is leaning toward appealing a federal judge’s ruling against the agency’s bid to block Microsoft Corp.’s $69 billion acquisition of Activision Blizzard Inc., according to a person familiar with the case.
No final decision has been reached, but the appeal could be filed as soon as Wednesday, said the person, who asked not to be named because they weren’t authorized to discuss confidential deliberations.
US District Judge Jacqueline Scott Corley in San Francisco ruled in favor of Microsoft Tuesday, finding the FTC didn’t prove the combination with Activision would harm competition for gaming. She extended a temporary restraining order that blocks Microsoft from closing the deal until midnight US West Coast time on Friday.
The FTC would need to seek an emergency stay from the 9th Circuit Court of Appeals to extend that pause beyond Friday, she wrote.
Earlier: Microsoft Cleared to Buy Activision in US as UK Pauses Fight
Robert Lande, a professor at University of Baltimore School of Law, said Corley was too strict about the level of certainty she required from the FTC’s case. The law only requires the agency show that a deal “may” substantially lessen competition, not that it “will” or “is likely to,” he said.
“I believe the judge evaluated the case using the wrong standard and I believe the FTC should appeal,” said Lande, who gave a lecture at the FTC in March on research into how courts have applied that antitrust standard to mergers.
Stanford Law Professor Doug Melamed, however, said he believes it’s unlikely the appeals court would rule before the deal’s deadline on July 18.
“It’s extremely unlikely that the FTC could persuade the Court of Appeals to enjoin the merger before July 18,” said Melamed, a former Justice Department antitrust official.
Microsoft declined to comment on a potential appeal, referring to its earlier comments on the judge’s ruling: “We’re grateful to the court in San Francisco for this quick and thorough decision,” Microsoft President Brad Smith said.
The FTC declined to comment.
