Judge Expands Hearing to 5 Days on FTC’s Motion to Block Microsoft/Activision
U.S. District Judge Jacqueline Scott Corley for Northern California in San Francisco is expanding the court’s two-day evidentiary hearing to portions of five days on the FTC’s motion for a preliminary injunction to block Microsoft’s Activision Blizzard buy (see 2306140025), said her signed order Wednesday (docket 3:23-cv-02880). Microsoft and Activision, in a motion Wednesday for an expedited case management conference, warned that a two-day hearing is “not enough time to present the issues in this case.”
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The evidentiary hearing will begin June 22 at 8:30 a.m. PDT, and will continue June 23 and again June 27-29, said Corley's order. She anticipates each court day will end around 3 p.m. PDT, it said. The parties are to meet and confer about the presentation of evidence at the hearing, “and any other matters necessary to ensure efficient presentation of the issues,” said the order. They then will file a joint statement by noon PDT identifying the witnesses each party intends to call, it said.
The statement also will contain a list identifying each exhibit each party intends to offer at the evidentiary hearing, “either through a witness declaration or live testimony,” said the order. The list should also identify which exhibits are subject to a confidentiality designation and where on the docket the court can locate a declaration in support of sealing as required by Local Rule 79-5, it said. Corley cautioned the parties she “strongly disfavors closing the courtroom for any portion of the evidentiary hearing” to accommodate confidential testimony or exhibits.
Corley’s order instructs each party, by noon PDT June 20, to submit “initial proposed findings of fact and conclusions of law.” After the close of evidence, the court will set a deadline for submission of final proposed findings of fact and conclusions of law, said the order. Corley anticipates they will be due no later than two days after the end of the evidentiary hearing, it said.
Microsoft and Activision want Corley to use her discretion to set an expedited case management conference because “time is of the essence” because their merger agreement has a July 18 termination date, said their motion Wednesday. The FTC immediately served notice it planned to file an opposition to the motion by 2 p.m. PDT Thursday. Microsoft and Activision “never sought to meet and confer” with the FTC about the relief they requested in their motion, and that prejudices the commission’s ability to respond, said the notice.
The FTC knows a preliminary injunction decision “will determine whether the transaction succeeds or fails,” said the Microsoft-Activision motion. Yet counsel for the agency claims the preliminary injunction is required only “to ensure there is time to complete the administrative process,” it said: “Let there be no doubt, a preliminary injunction ruling is the only decision that matters under these challenging deadlines.”
History shows the court’s ruling on the FTC’s preliminary injunction request “will decide the fate of this transaction,” especially due to the July 18 termination date, said the Microsoft-Activision motion. If Microsoft and Activision prevail, the FTC’s “longstanding and unbroken practice has been to walk away from its challenge,” it said. But if the court grants the preliminary injunction, “it will effectively block the transaction,” it said.