Microsoft Claims That The FTC Is Violating The Constitution With Its Lawsuit Blocking The Purchase Of Activision

Video Games

Dec 28

Images from Call of Duty and a vehicle game, featuring Activision and Xbox logos. — Image Source: Culture Slate

Microsoft have given a new response to the FTC over their lawsuit against the acquisition of Activision Blizzard, claiming that the FTC is violating their fifth amendment rights to due process.

As part of the Affirmative And Other Defenses section of its response document, Microsoft has asserted numerous defenses against the complaint. Along with the claim that the FTC is violating Microsoft’s right to procedural due process, they state that the FTC has prejudged the merits of instant action and that the actions FTC are taking are unlawful under Section 5 of the Federal Trade Commission Act. Microsoft states that the current proceedings are invalid as the complaint of the FTC violates Article III of the US Constitution, with the FTC arbitrarily subjecting Microsoft to administrative proceedings rather than being put to an Article III judge.

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In terms of those defenses not regarding the law, Microsoft states that the FTC’s claims are too speculative, and that the alleged harm to potential competition is not actionable. They state that there will be no harm to competition, as new competitors will continue to arrive in the form of constant expansion of current competitors. The markets of multi-game content library subscription services and cloud gaming subscription services will not be affected by this deal, Microsoft alleges; if not for this deal, the Activision games would not be available on such services.

The acquisition of Call of Duty is also referenced within this section, stating that the contractual commitments Microsoft have been making to other gaming companies such as Nintendo address the alleged anticompetitive effects by providing non-exclusive games to those platforms. While it remains to be seen what the office of administrative law judges will make of Microsoft’s claims, those that relate to the law can be proven and are likely to affect the result of the acquisition.

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