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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Alvaro M. Bedoya 

In the Matter of

Microsoft Corp. 

a corporation; 

and 

Activision Blizzard, Inc.

a corporation. 

Docket No. 9412 

RESPONDENTS’ MOTION TO MODIFY ORDER SETTING HEARING DATE

On July 10, 2023, following a five-day evidentiary hearing, the District Court for the Northern 

District of California denied Complaint Counsel’s request to preliminarily enjoin Microsoft 

Corporation’s (“Microsoft’s”) acquisition of Activision Blizzard, Inc. The Commission appealed the 

District Court’s decision to the Court of Appeals for the Ninth Circuit, and oral argument has been 

calendared for December 6. Meanwhile, on September 26, 2023, the Commission returned this matter 

to adjudication and ordered the Part 3 evidentiary hearing to commence 21 days after the Ninth Circuit 

issues its ruling on the Commission’s appeal. See Commission Order Returning Matter to 

Adjudication (Sept. 26, 2023). 

Respondents respectfully request that the Commission modify its September 26 Order setting 

the hearing date to provide that the hearing shall commence 21 days after the Ninth Circuit’s decision, 

or on May 6, 2024, whichever is later. This modification is necessary to avoid pre-existing conflicts 

for Microsoft’s trial counsel, will not prejudice any party, and will give the parties and the 

Administrative Law Judge more certainty about the trial date and more time in which to meet the 

necessary pretrial deadlines. 

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The Commission’s Rules of Practice authorize the Commission to reschedule the hearing date 

in an adjudicative proceeding “upon a showing of good cause.” 16 C.F.R. § 3.41(b); see also 16

C.F.R. § 3.21(c)(1). There is good cause here for several reasons.

First, Microsoft’s lead and second-chair trial counsel have a long-scheduled federal trial in 

California in In re NFL’s Sunday Ticket Antitrust Litigation, No. 2:15-ml-02668 (C.D. Cal.). The 

trial is scheduled to begin on February 22, 2024, and could last six weeks or more. Setting the hearing 

date in this matter to begin no earlier than May 6, 2024, is necessary to provide adequate time to 

complete the Sunday Ticket trial before the hearing in this matter begins, and to ensure that Microsoft 

is not deprived of counsel’s full participation in this hearing. 

Second, the modification would provide all parties with more notice (and certainty) than the 

current Order provides. It is unclear when the Ninth Circuit will rule, and it will aid the parties (and 

potentially the Administrative Law Judge) to have a certain “no earlier than” date to avoid conflicts 

with other matters and provide a clear road map for setting the numerous remaining pretrial deadlines.

Finally, Respondents’ request will not prejudice any party. The Ninth Circuit appeal is not 

set to be argued until December 6, 2023, and there is no certainty that the court will rule on or before 

April 14, 2024, such that an evidentiary hearing could begin before May 6, 2024. The transaction 

has already closed, and in repeated meet-and-confers on this matter, Complaint Counsel has not put 

forward any evidence of prejudice from the limited potential deferment of the hearing in this matter. 

See also Preliminary Injunction Opinion at 52, FTC v. Microsoft Corp., 3:23-cv-2880 (N.D. Cal. Jul. 

19, 2023), ECF No. 327 (“The FTC insists the difficulty in ordering post-acquisition divestiture is the 

public equity that prevails. But it does not cite anything specific about this merger to support that 

assertion. It is a vertical acquisition. Microsoft and Activision will act as parent and subsidiary. 

There is no planned dismantling of operations . . . . What exactly about the merger would make it 

difficult to order an effective divestiture? The FTC does not say. . . . So, the balance of equities is a 

separate, independent reason the FTC’s motion must be denied.”). The only party facing significant 

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prejudice here is Microsoft, because of the possibility that the hearing would commence while lead 

counsel are unavailable in a different trial.

Respondents have conferred with Complaint Counsel, who intend to oppose this Motion on 

the grounds that it is not yet ripe. Microsoft seeks relief from this potential conflict now, because 

waiting until the Ninth Circuit issues its decision (and the conflict, if any, is imminent) would mean 

the evidentiary hearing would be set to commence in 21 days, well before the Commission’s 45-day 

deadline to rule on a motion seeking relief. See 16 C.F.R. § 3.22(a). This puts Microsoft in an unfair 

position. Accordingly, Respondents respectfully request that the Commission modify its September 

26 Order setting the hearing date to provide that the hearing shall commence 21 days after the Ninth 

Circuit’s decision, or on May 6, 2024, whichever is later. 

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Dated: November 16, 2023 Respectfully submitted,

By: /s/ Steven C. Sunshine By: /s/ Beth Wilkinson

Steven C. Sunshine 

Julia K. York

Skadden, Arps, Slate, Meagher & Flom LLP 

1440 New York Avenue, N.W. 

Washington, DC 20005 

Telephone: (202) 371-7860 

Fax: (202) 661-9126 

steve.sunshine@skadden.com 

julia.york@skadden.com 

Maria A. Raptis

Michael J. Sheerin

Evan R. Kreiner 

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West

New York, NY 10001 

Telephone: (212) 735-2425 

Fax: (917) 777-2425 

maria.raptis@skadden.com 

michael.sheerin@skadden.com 

evan.kreiner@skadden.com 

Counsel for Activision Blizzard, Inc. 

Beth Wilkinson 

Rakesh N. Kilaru

Kieran Gostin

Grace L. Hill

Anastasia M. Pastan

Sarah E. Neuman

Alysha Bohanon 

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 

abohanon@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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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Alvaro M. Bedoya 

In the Matter of

Microsoft Corp. 

a corporation; 

and 

Activision Blizzard, Inc.

a corporation. 

Docket No. 9412 

[PROPOSED] ORDER GRANTING RESPONDENTS’ MOTION TO MODIFY 

ORDER SETTING HEARING DATE

Upon consideration of Respondents’ Motion to Modify Order Setting Hearing Date, and 

for good cause shown, it is hereby ORDERED, pursuant to Commission Rule 3.41(b), 16 

C.F.R. § 3.41(b), that the evidentiary hearing in this matter shall commence 21 days after the 

Ninth Circuit’s decision, or on May 6, 2024, whichever is later. 

By the Commission. 

 

April J. Tabor 

Secretary 

SEAL:

ISSUED: 

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CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2023, 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) 

Jennifer Fleury (jfleury@ftc.gov)

Michael A. Franchak (mfranchak@ftc.gov)

James Gossmann (jgossmann@ftc.gov) 

Ethan Gurwitz (egurwitz@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 

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Counsel Supporting the Complaint

/s/ Beth Wilkinson

Beth Wilkinson 

Counsel for Microsoft Corp. 

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