PUBLIC

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

Microsoft Corp., 

a corporation, 

and 

Activision Blizzard, Inc., 

a corporation. 

Docket No. 9412 

RESPONDENT MICROSOFT CORP.’S OPPOSITION TO COMPLAINT COUNSEL’S 

MOTION FOR LEAVE TO FILE AN OPPOSITION, OR IN THE ALTERNATIVE, 

MOTION FOR LEAVE TO FILE A REPLY IN SUPPORT OF MICROSOFT’S 

MOTION TO CERTIFY

Complaint Counsel (“CC”) has no standing to challenge Microsoft’s non-party 

subpoenas, and CC’s motion seeking leave to oppose Microsoft’s motion to certify should be 

denied. In the alternative, if CC is permitted to file its opposition, Microsoft seeks leave pursuant 

to 16 C.F.R. § 3.22(d) to file a Reply in support of its motion to certify to address the arguments 

CC raises in its opposition that go well beyond the scope of Microsoft’s motion to certify. 

I. Complaint Counsel Has No Standing To Oppose Microsoft’s Non-Party

Subpoenas, And The Opposition Is Untimely As To The SIE Subpoenas.

As CC has pointed out in other matters, “[a] party to litigation generally lacks standing to 

object to a third-party subpoena.” CC’s Opp’n to Resp. LabdMD, Inc.’s Mot. for Protective Order, 

In the Matter of LabMD, Inc., No. 9357, 2013 WL 6213353, at *2 (F.T.C. Nov. 15, 2013) 

(collecting cases). Standing may be established only when the party seeking to prevent discovery 

“has a right or privilege personal to it—such as an interest in preserving proprietary confidential 

information or an interest in maintaining a privilege.” Id. (also collecting cases). Here, CC’s only

colorable claim of harm is that if the subpoenas are deemed proper, then CC will be entitled to less 

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examination time during the SIE and Ubisoft depositions. This is not the type of personal “right 

or privilege” that the caselaw contemplates as conferring standing. See, e.g., Lattin ex rel. Marquez 

v. Bd. of Educ. of Aztec Mun. Sch. Dist., No. 1:20-CV-01037 DHU-LF, 2022 WL 1026946, at *2 

(D.N.M. Apr. 6, 2022) (no standing to object to a non-party subpoena based on purportedly 

prejudicially late deposition date). Indeed, in an analogous situation involving the propriety of 

subpoenas ad testificandum issued to non-parties, the ALJ rejected CC’s objections to non-party 

subpoenas where “the non-parties do not object to the depositions,” and thus there was no reason 

to deviate from the general rule that CC, as a party, does not have standing to challenge non-party 

subpoenas. See In re Basic Research, LLC, No. 9318, 2004 FTC LEXIS 237, *12 (F.T.C. Dec. 9, 

2004). 

Even if CC could establish standing to challenge the subpoenas, which it cannot, a motion 

to quash would have been untimely as to the SIE subpoenas. Microsoft issued the SIE subpoenas 

on December 12, 2023. The deadline to move to quash those subpoenas was, therefore, December 

22, 2023. See 16 C.F.R. § 3.34(c). CC’s attempt to resuscitate its out-of-time objections under 

the guise of an opposition to Microsoft’s motion to certify should be rejected. 

II. If Complaint Counsel Is Permitted To Oppose Microsoft’s Motion, Microsoft 

Should Be Permitted To File A Reply.

In the alternative, if CC is granted leave to oppose Microsoft’s Motion to Certify, Microsoft

respectfully moves pursuant to 16 C.F.R. § 3.22(d) for leave to file a Reply In Support Of Its 

Motion To Certify To The Commission A Request For Court Enforcement Of Subpoena Duces 

Tecum Issued To Nonparty Sony Interactive Entertainment LLC (“Motion”). The proposed Reply 

is attached to this opposition and motion. The basis for this request is that CC in its conditional 

opposition brief makes arguments about three new issues that could not have been addressed in 

Microsoft’s initial brief in support of its Motion: 

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1. CC asserts in its response that the subpoenas ad testificandum that Microsoft issued to 

individuals at Ubisoft are invalid, but Microsoft’s Motion sought only to certify a request 

to enforce the subpoena duces tecum that Microsoft served on SIE, and does not address 

the Ubisoft subpoenas; 

2. CC raises the specific issue of deposition time allocation, which was not at issue in 

Microsoft’s Motion, given that SIE does not object to Microsoft using half the total 

deposition time; and

3. CC makes certain representations about the meet and confer process between Microsoft 

and CC that occurred after Microsoft’s Motion was filed. 

Dated: January 4, 2024 Respectfully submitted,

By: /s/ Sarah Neuman

Beth Wilkinson 

Rakesh N. Kilaru

Kieran Gostin

Grace L. Hill

Anastasia M. Pastan

Sarah E. Neuman

Wilkinson Stekloff LLP 

2001 M Street NW, 10th Floor 

Washington, DC 20036 

Telephone: (202) 847-4000 

Fax: (202) 847-4005 

bwilkinson@wilkinsonstekloff.com 

rkilaru@wilkinsonstekloff.com 

kgostin@wilkinsonstekloff.com 

ghill@wilkinsonstekloff.com 

apastan@wilkinsonstekloff.com 

sneuman@wilkinsonstekloff.com 

Michael Moiseyev

Megan A. Granger

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Weil Gotshal & Manges LLP

2001 M Street NW 

Suite 600 

Washington, DC 20036 

(202) 682-7026 

michael.moiseyev@weil.com

megan.granger@weil.com

 Counsel for Microsoft Corp. 

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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of

Microsoft Corp.,

a corporation; 

and 

ACTIVISION BLIZZARD, INC.

a corporation. 

Docket No. 9412 

[PROPOSED] ORDER DENYING COMPLAINT COUNSEL’S MOTION FOR LEAVE 

TO FILE AN OPPOSITION TO RESPONDENT MICROSOFT CORP.’S 

MOTION TO CERTIFY 

 Upon consideration of Complaint Counsel’s Motion For Leave To File An Opposition To 

Respondent’s Motion For Certification To The Commission Of Request For Court Enforcement 

Of Nonparty Subpoena Respondent and Respondent Microsoft Corp.’s Opposition To Complaint 

Counsel’s Motion To File An Opposition, Or In The Alternative, Motion To File A Reply In 

Support Of Microsoft’s Motion To Certify, it is HEREBY 

ORDERED that Complaint Counsel’s Motion For Leave To File An Opposition To

Respondent’s Motion For Certification To The Commission Of Request For Court Enforcement 

Of Nonparty Subpoena Respondent is DENIED; and 

FURTHER ORDERED that Complaint Counsel is denied leave to file an opposition to 

Microsoft Corp.’s Motion to Certify to the Commission a Request for Court Enforcement of 

Subpoena Duces Tecum Issued to Nonparty Sony Interactive Entertainment LLC. 

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ORDERED:

______________________________________

D. Michael Chappell

Chief Administrative Law Judge

Date: 

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

Microsoft Corp., 

a corporation, 

and 

Activision Blizzard, Inc., 

a corporation. 

Docket No. 9412 

RESPONDENT MICROSOFT CORP.’S REPLY IN SUPPORT OF MOTION TO 

CERTIFY TO THE COMMISSION A REQUEST FOR COURT ENFORCEMENT OF 

SUBPOENA DUCES TECUM ISSUED TO NONPARTY 

SONY INTERACTIVE ENTERTAINMENT LLC

Complaint Counsel (“CC”) does not attempt to argue that the narrowly tailored discovery 

Microsoft seeks from SIE is not relevant or proportional to the litigation. Instead, CC’s 

opposition advances procedural arguments in a transparent effort to prevent Microsoft from 

taking discovery that would promote a more balanced record on the topics of the Sony and 

Ubisoft agreements. CC’s preferred rule—that a party who opposes reopening discovery and 

loses is prohibited from taking discovery—is fundamentally unfair and prejudicial and should 

not be credited. And in any event, here, Microsoft opposed only the breadth of discovery sought, 

not discovery itself. See Resp. Microsoft’s Opp’n CC’s Mot. To Extend Fact Disc. To Allow 

Disc. Regarding Resps.’ Agreement With Ubisoft Entertainment SA & Sony Interactive 

Entertainment LLC at 4 (Oct. 20, 2023). 

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ARGUMENT

I. Complaint Counsel’s Assertions About Meet And Confer Requirements Are 

Incorrect. 

Microsoft did not seek to avoid any meet and confer obligations. The purpose of the meet 

and confer requirements is to determine whether an issue can be resolved short of court 

intervention. Here, Microsoft’s motion to certify raised a dispute between Microsoft and SIE. 

Microsoft’s counsel conferred with SIE’s counsel numerous times, by phone and by email, before

determining that Microsoft and Sony were at an impasse and filing a motion to certify. See, e.g., 

Ex. H, Email from Larry Malm, Cleary Gottlieb Steen & Hamilton LLP, to Sarah Neuman, 

Wilkinson Stekloff LLP (Dec. 19, 2023), Resp. Microsoft’s Mot. to Certify (Dec. 21, 2023). While 

CC raised a question about Microsoft’s authority to issue the subpoenas on December 19, by that 

point, the return date on the subpoena duces tecum had passed and Microsoft’s dispute with SIE

had become clear. No amount of meeting and conferring with CC would have obviated 

Microsoft’s need to file its motion to certify. And in addressing the validity of the subpoenas to 

SIE in its motion to certify, Microsoft was responding to a point that SIE had raised in the meet 

and confer process, not end-running CC. 

The authority CC cites does not require Microsoft to have met and conferred with CC prior 

to filing a motion to certify. See 16 C.F.R. § 3.22(g) (rule governing discovery motions directed 

at a party, not motions to certify—which, by definition, involve third parties); In re Lab Corp. of 

Am., No. 9345, 2011 FTC LEXIS 26, at *5–6 (F.T.C. Feb. 8, 2011) (addressing the requirement 

to meet and confer before a motion to compel party discovery, not a motion to certify). While 

Additional Provision 4 of the Scheduling Order does require the parties to meet and confer before 

certain types of motions practice, that Provision does not explicitly apply to disputes between a 

party and a non-party, nor would such a rule make practical sense. 

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II. The Discovery Is Necessary To Ensure A Balanced Record, And Any Concerns 

Could Be Addressed By Reopening Discovery To Permit Microsoft’s Subpoenas. 

As set out in Microsoft’s motion to certify, in SIE’s small production of 52 documents

in response to the FTC’s subpoena duces tecum, fewer than half of the documents related to the 

Sony Agreement. Microsoft’s subpoena and narrowly tailored document collection and review 

proposal was designed to develop a more complete record, particularly with respect to SIE’s

internal assessment of the Sony Agreement. See Resp. Microsoft Corp.’s Mot. to Certify at 7 

(Dec. 21, 2023). Fundamental fairness dictates that such discovery be permitted. Cf. In re 

Thompson Med. Co., Inc., 101 F.T.C. 385 (1983) (“[D]iscovery should be granted when the court 

is persuaded that ‘the party seeking discovery is not abusing the procedure and the information 

sought would prove helpful in providing for a full and fair adjudication.’” (citation omitted)).

If the Court determines it is necessary, Microsoft would be willing to file a motion

pursuant to Rule 3.21(c)(2) seeking to extend the fact discovery schedule to take targeted, 

reciprocal third-party discovery, consistent with the Court’s October 26 Order Reopening 

Discovery.1

 In that case, Microsoft would request that the Court deny Microsoft’s motion to 

certify without prejudice so that it may be refiled contemporaneous with a motion to extend the 

fact discovery schedule. 

1 The same factors CC cited in their Motion to Extend Fact Discovery constitute good cause for 

permitting Microsoft to take discovery on the Sony and Ubisoft Agreements. See CC’s Mot. to 

Extend Fact Discovery at 2 (Oct. 10, 2023) (arguing with respect to the Agreements that “this

Court [needs] a complete picture of the facts when it decides this matter” and that discovery “can 

be completed without risk of delaying the merits hearing, which is currently scheduled to 

commence twenty-one days after the U.S. Court of Appeals for the Ninth Circuit issues its opinion”

(emphasis added)); see also CC’s Mem. In Supp. Of Mot. to Extend Fact Discovery at 6 (citing 

caselaw that additional discovery is authorized when “the search for the truth [is] served”).

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CONCLUSION

For the foregoing reasons and the additional reasons set out in Microsoft’s motion to 

certify, Microsoft’s motion to certify should be granted. 

Dated: January 4, 2024 Respectfully submitted,

By: /s/ Sarah Neuman

Beth Wilkinson 

Rakesh N. Kilaru

Kieran Gostin

Grace L. Hill

Anastasia M. Pastan

Sarah E. Neuman

Wilkinson Stekloff LLP 

2001 M Street NW, 10th Floor 

Washington, DC 20036 

Telephone: (202) 847-4000 

Fax: (202) 847-4005 

bwilkinson@wilkinsonstekloff.com 

rkilaru@wilkinsonstekloff.com 

kgostin@wilkinsonstekloff.com 

ghill@wilkinsonstekloff.com 

apastan@wilkinsonstekloff.com 

sneuman@wilkinsonstekloff.com 

Michael Moiseyev

Megan A. Granger 

Weil Gotshal & Manges LLP

2001 M Street NW 

Suite 600 

Washington, DC 20036 

(202) 682-7026 

michael.moiseyev@weil.com

megan.granger@weil.com

 Counsel for Microsoft Corp. 

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CERTIFICATE OF SERVICE

I hereby certify that, on January 4, 2024, I caused a true and correct copy of the foregoing 

to be filed electronically using the FTC’s E-Filing System and served the following via email: 

April Tabor 

Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm H-113 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

The Honorable D. Michael Chappell 

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm H-110 

Washington, DC 20580 

I also certify that I caused the forgoing document to be served via email to: 

James H. Weingarten (jweingarten@ftc.gov) 

James Abell (jabell@ftc.gov) 

Cem Akleman (cakleman@ftc.gov) 

J. Alexander Ansaldo (jansaldo@ftc.gov) 

Peggy Bayer Femenella (pbayerfemenella@ftc.gov)

Michael T. Blevins (mblevins@ftc.gov) 

Amanda L. Butler (abutler2@ftc.gov) 

Nicole Callan (ncallan@ftc.gov) 

Maria Cirincione (mcirincione@ftc.gov) 

Kassandra DiPietro (kdipietro@ftc.gov) 

Michael A. Franchak (mfranchak@ftc.gov)

James Gossmann (jgossmann@ftc.gov) 

Meredith Levert (mlevert@ftc.gov) 

David E. Morris (dmorris1@ftc.gov) 

Merrick Pastore (mpastore@ftc.gov) 

Stephen Santulli (ssantulli@ftc.gov) 

Edmund Saw (esaw@ftc.gov) 

U.S. Federal Trade Commission 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

Telephone: (202) 326-3570 

Counsel Supporting the Complaint

D. Bruce Hoffman (bhoffman@cgsh.com) 

Leah Brannon (lbrannon@cgsh.com) 

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Carl Lawrence Malm (lmalm@cgsh.com)

Isabel Tuz (ituz@cgsh.com)

Everett K. Coraor (ecoraor@cgsh.com) 

Cleary Gottlieb Steen & Hamilton LLP

2112 Pennsylvania Avenue, N.W. 

Washington, D.C. 20037 

Telephone: (202) 974-1500 

Counsel for Non-Party Sony Interactive Entertainment LLC 

Steven C. Sunshine (steve.sunshine@skadden.com) 

Julia K. York (julia.york@skadden.com) 

Jessica R. Watters (jessica.watters@skadden.com) 

Skadden, Arps, Slate, Meagher & Flom LLP 

1440 New York Avenue, N.W. 

Washington, D.C. 20005 

Telephone: (202) 271-7860 

Maria A. Raptis (maria.raptis@skadden.com) 

Michael J. Sheerin (michael.sheerin@skadden.com)

Evan R. Kreiner (evan.kreiner@skadden.com 

Bradley J. Pierson (bradley.pierson@skadden.com) 

Matthew M. Martino (matthew.martino@skadden.com) 

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West

New York, NY 10001 

Telephone: (212) 735-2425 

Counsel for Activision Blizzard, Inc.

/s/ Sarah Neuman 

Sarah Neuman

Wilkinson Stekloff LLP 

2001 M Street NW, 10th Floor 

Washington, DC 20036 

Telephone: (202) 847-4000 

Fax: (202) 847-4005 

sneuman@wilkinsonstekloff.com 

Counsel for Microsoft Corp. 

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