Microsoft claims the FTC’s antitrust lawsuit violates its fifth amendment rights


The beginning of this month saw Microsoft’s big money buyout of Activision-Blizzard hit a US federal government-level snag when the FTC filed an antitrust suit to block the sale, citing concerns that the merger would strangle competition and withhold certain game IPs from other platforms. Microsoft has since put out its official response to the suit, and it reads about as angry as legalese is likely allowed to get.

Many of the arguments Microsoft makes in the response have been covered before, with the company stating its intention to have a 10-year deal with Sony for the Call of Duty franchise, arguing that the merger is meant to primarily improve Microsoft’s meager mobile gaming footprint, and claiming that Sony is raising complaints when it is already a market leader in terms of console sales and exclusivity deals.

However, the response goes further, calling out the FTC itself: Microsoft argues that because administrative law judges who heard the FTC’s complaint are picked by the government body itself, the company’s fifth amendment rights were violated. The company also argues that the FTC’s overall ability to wield executive power while being an independent body and the constraints in place for removing members from the commission violates Article II of the US Constitution and the separation of powers.

ActiBlizz CEO Bobby Kotick also sounded off about the FTC suit, claiming that there is “no sensible, legitimate reason for our transaction to be prevented from closing” while also claiming that the games industry “has enormous competition and few barriers to entry.”

“We have seen more devices than ever before enabling players a wide range of choices to play games. Engines and tools are freely available to developers large and small. The breadth of distribution options for games has never been more widespread,” Kotick’s statement reads. “We believe we will prevail on the merits of the case.”

The case now moves to the FTC’s administrative law judge Michael Chappell.

Activision-Blizzard is considered a controversial gaming company owing to a long string of scandals over the last few years, including the Blitzchung boycott, mass layoffs, labor disputes, and executive pay fiasco. In 2021, the company was sued by California for fostering a work environment rife with sexual harassment and discrimination, the disastrous corporate response to which compounded Blizzard’s ongoing pipeline issues and the widespread perception that its online games are in decline. Multiple state and federal agencies are investigating the company as employees unionize and call for Bobby Kotick’s resignation. As of 2022, the company is being acquired by no less than Microsoft.
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