The U.S. 9th Circuit Court of Appeals has upheld the October 2023 approval of Microsoft's $75.4 billion acquisition of Activision Blizzard, dismissing the Federal Trade Commission's appeal. The court confirmed that the initial trial judge properly ruled that the FTC did not substantiate claims that the merger would harm competition. The FTC was primarily concerned about Microsoft's cloud gaming strategies, but the court found insufficient evidence to support their stance. Microsoft's commitment to continue releasing popular titles like Call of Duty on other platforms was emphasized as a competitive measure.
The panel held that the district court applied the correct legal standards and did not abuse its discretion, or rely on clearly erroneous findings, in holding that the FTC failed to make a sufficient evidentiary showing to establish the requisite likelihood of success on the merits of its claim.
The appeals court also concluded that Activision games launching on Game Pass--an Xbox-exclusive subscription service--would not 'substantially lessen competition.'
Microsoft carved out deals to bring Xbox games to non-Xbox streaming platforms, but the FTC appealed. Now, that appeal has been denied.
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