Thread by @FOSSpatents

The question came up what the #FTC would have to do to prevent the consummation #Microsoft's acquisition of #ActivisionBlizzard in a scenario where UK & EU cleared.

Due to a Twitter issue I have to post this thread tweet-by-tweet (publishing whole thread failed before).

🧵1/X

The FTC's in-house court can't prevent the consummation of the merger. The FTC needs to ask a United States District Court to enjoin (= bar) Microsoft.

It hasn't gone to such a federal court yet because prerequisite foreign approvals (especially UK & EU) are outstanding.

🧵2/X

Assuming UK approves in April, EU on May 22., the first question is whether the FTC will wait until the EC has formally decided (huge hurry then) or run to a federal court on the basis of an MLex or similar report that the EC is inclined to clear the deal.

🧵3/X

Let's assume the EC awaits the formal EU decision. The merger could then close within a day. The FTC would need a temporary restraining order (TRO), which is even more preliminary than a preliminary injunction as I explained on @XB2podcast.

🧵4/X

The purpose of a TRO is to preserve the status quo while the court decides on whether to grant a preliminary injunction (PI), which in turn would be in force until a final (post-trial) judgment.

By default, a TRO must be replaced by a PI within 2 weeks or it's over.

🧵5/X

The FTC could ask for an ex parte (without hearing Microsoft) TRO, and a judge could rule on that within a matter of hours.

Alternatively, Microsoft could stipulate (agree) to such a TRO so the court doesn't have to rule on the TRO. Don't know if they would. Doubt it...

🧵6/X

If the FTC depended on the TRO and the judge denied it, the deal would close the next day.

If there is a TRO, then it all depends on the PI decision.

TRO is easier to get. Court focuses on whether it's justified to preserve the status quo. PI is much more merits-based.

🧵7/X

The two weeks within which a TRO has to be replaced by a PI could be extended with Microsoft's consent. No idea whether they would agree to that. Maybe 3 or 4 weeks instead of 2; some parties do that. But they might decline, given the glaring weaknesses of the FTC's case.

🧵8/X

A decision on a PI motion by the FTC would be based on the likelihood of success on the merits (huge problem for FTC) and the balance of hardships.

Merger agreement has July 18 deadline. That's critical.

The FTC could still keep suing to undo the merger later.

🧵9/X

There is a possibility of this being over in late May, either because the FTC would settle or because it would fail to win a TRO.

With a TRO, this would go into June, but I doubt the FTC would then get a PI to replace the TRO.

🧵10/10 (END)