On January 18, 2022, Microsoft’s acquisition of Activision, one of the world’s most-valuable gaming companies, was announced. In April 2023, the United Kingdom’s Competition and Markets Authority (CMA) blocked the deal on concerns that the deal could “alter the future of the fast-growing cloud gaming market, leading to reduced innovation and less choice for UK gamers over the years,” a decision that Microsoft appealed to a Competition Appeal Tribunal. A few months later, in July 2023, as previously reported in Minding Your Business, the FTC’s challenge to the deal in the United States fell short, leaving the UK as the only competition authority preventing the closing of the deal.
Antitrust
FTC Continues to Stake Out Role as Key AI Regulator
By Nolan Goldberg & Michelle M. Ovanesian on
While speaking at the annual conference of the National Advertising Division on September 19, 2023, the Federal Trade Commission (“FTC”) announced a generative AI (“AI”) policy that is consistent with Chairwoman Khan’s focus on the perceived harms to consumers from large technology companies, fully embracing a plan to regulate AI swiftly, aggressively, and proactively.
The agency began its remarks on AI by observing that its purported policy decision to allow technology companies to self-regulate during the “Web 2.0” era was a mistake. Self-regulation, according to the FTC, was a failure that ultimately resulted in the collection of too much power and too much data by a handful of large technology companies.
U.S. DOJ and FTC Release Long-Anticipated Revised Merger Guidelines
On the heels of the historic proposed changes to the Hart-Scott-Rodino (“HSR”) merger review process, the U.S. Department of Justice Antitrust Division and the Federal Trade Commission released the 2023 Draft Merger Guidelines for public comment. The single set of guidelines will replace the former horizontal and vertical guidelines, becoming…
M&A Deals Face Additional Scrutiny under the FTC’s New HSR Reporting Rules
On June 29, 2023, the Federal Trade Commission published a Notice of Proposed Rulemaking that would dramatically expand HSR reporting requirements. The historic changes fundamentally alter the HSR reporting landscape, shifting to more of a “white paper” approach, similar to that of ex-U.S. jurisdictions like the EU. These modifications bring…
The Axon Side-Step: Defendants’ New Dance to Avoid Agency Enforcement Actions
By Colin Kass, David Munkittrick & Erica T. Jones on
The FTC and SEC have their own administrative dispute resolution regime, presided over by their own administrative judges (“ALJs”). Until now, those regimes were virtually immune from attack on a constitutional basis, because any such challenge had to wait until appeal to the federal courts (which only happened after a full trial and appeal to the agency itself). No longer. On April 14, 2023, the Supreme Court held that the Federal Trade Commission Act and the Securities Exchange Act do not create an alternative review scheme in which constitutional challenges must first go through the agencies, and only later receive federal court review in a court of appeals.
Microsoft Defeats FTC’s Roadblock on Path to Activision Merger
In the latest of a string of losses for antitrust enforcers, the Northern District of California resoundingly denied the FTC’s bid to enjoin the Microsoft-Activision merger, allowing the deal to proceed a week in advance of its upcoming merger termination date. In a case that tested the bounds of antitrust law in vertical integration deals, Presiding Judge Jacqueline Scott Corley found “the record evidence points to more consumer access,” rather than showing signs of reduced competition. Federal Trade Commission v. Microsoft Corporation, et al.
FTC to Dealmakers: Don’t Interfere with Investigations
By John R. Ingrassia & Colin Kass on
On June 15, 2023, the Federal Trade Commission’s Bureau of Competition issued a statement on the relationship between voluntary interviews with the agency and contractual provisions that require or limit the disclosure of information. The Bureau explains that voluntary interviews are a key aspect of investigations because they “are essential to help [them] understand real-world dynamics and effects,” and “reduce unnecessary burdens on marketplace stakeholders and Bureau staff.” In the statement, the Bureau asserts that certain contractual restrictions impede investigations, and should be considered void.
Antitrust and Section 230: Where Are We After Gonzalez v. Google?
In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.