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UNITED STATES OF AMERICA 

BEFORE THE 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 

PUBLIC

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 

Pursuant to Rule 3.22 of the Rules of Practice for Adjudicative Proceedings (“Rules”), 

Complaint Counsel respectfully moves for leave to file the attached brief opposing Respondent 

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 on December 

21, 2023. In support of its motion for leave, Complaint Counsel states as follows: 

1. As explained in more detail in the Opposition, Microsoft served four invalid subpoenas 

on third parties and subsequently filed a motion to certify to the Commission a request 

for court enforcement of one of its invalid subpoenas. 

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2. In addition to serving subpoenas without authority, Microsoft violated this Court’s 

January 4, 2023 Scheduling Order and the Rules by putting the dispute over the validity 

of the subpoenas directly before the Court without first meeting and conferring with 

Complaint Counsel. 

3. Complaint Counsel’s proposed Opposition complies with the timing and word count 

requirements of Rule 3.22 and this Court’s Scheduling Order. 

For these reasons, as set forth in the proposed Opposition, Complaint Counsel 

respectfully requests leave to file its Opposition pursuant to Rule 3.22. 

Dated: January 4, 2024 Respectfully submitted, 

By: /s/ Nicole Callan 

Nicole Callan 

Cem Akleman 

Maria Cirincione 

Meredith Levert 

James H. Weingarten 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-2234 

Email: ncallan@ftc.gov 

cakleman@ftc.gov 

mcirincione@ftc.gov 

mlevert@ftc.gov 

jweingarten@ftc.gov 

Counsel Supporting the Complaint 

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UNITED STATES OF AMERICA 

BEFORE THE 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 

PUBLIC

[PROPOSED] ORDER GRANTING 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 

On January 2, 2024, Complaint Counsel filed a Motion for Leave to File an Opposition to 

Respondent’s Motion for Certification to the Commission of Request for Court Enforcement of 

Nonparty Subpoena. Complaint Counsel’s Motion is GRANTED. IT IS HEREBY ORDERED 

that Complaint Counsel has leave to file its Opposition to Respondent’s Motion for Certification 

to the Commission of Request for Court Enforcement of Nonparty Subpoena. 

ORDERED: ______________________________ 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: ________________________ 

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UNITED STATES OF AMERICA 

BEFORE THE 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 

PUBLIC

COMPLAINT COUNSEL’S OPPOSITION TO RESPONDENT’S MOTION FOR 

CERTIFICATION TO THE COMMISSION OF REQUEST FOR COURT 

ENFORCEMENT OF NONPARTY SUBPOENA 

On October 26, 2023, this Court granted leave for Complaint Counsel to take discovery 

relevant to the Ubisoft Agreement1

 and the Sony Agreement.

2 In the final days of that eightweek discovery period, Microsoft Corp. (“Microsoft”) sought to circumvent the Court’s October 

26 Order and the Rules of Practice for Adjudicative Proceedings (“Rules”) by issuing four 

subpoenas to third parties with no authority to do so. Microsoft then filed a motion to certify to 

1 The Ubisoft Agreement consists of several complex, interrelated agreements between 

Microsoft, Activision, and French videogame publisher Ubisoft. 

2 See Order on Complaint Counsel’s Motion to Allow Discovery Regarding Respondents’ 

Agreements with Ubisoft Entertainment SA and Sony Interactive Entertainment LLC, Oct. 26, 

2023 (“October 26 Order”). 

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the Commission a request for court enforcement of one of its four subpoenas. Microsoft’s motion 

to certify should be denied for two reasons. First, none of the subpoenas Microsoft issued to third 

parties is valid. Second, in direct violation of this Court’s January 4, 2023 Scheduling Order 

(“Scheduling Order”) and the Rules, Microsoft failed to meet and confer with Complaint 

Counsel regarding the validity of the subpoenas, and instead put this dispute directly before the 

Court. 

BACKGROUND 

Fact discovery in this matter closed on April 7, 2023. After the close of fact discovery, 

Respondents Microsoft and Activision Blizzard, Inc. (“Activision”) executed a series of 

complex, interrelated agreements with Sony Interactive Entertainment LLC (“Sony”) and 

Ubisoft Entertainment SA (“Ubisoft”), 

Respondents have claimed that these agreements 

are procompetitive, but mostly opposed discovery, arguing that the agreements “speak for 

themselves.” See Resp. Microsoft’s Opp. to Complaint Counsel’s Mot. to Extend Fact 

Discovery, October 20, 2023 (“Resp.’s Opposition”) at 3. 

This Court disagreed. As the Court found, Complaint Counsel had no opportunity to 

conduct any discovery related to the Ubisoft Agreement nor the circumstances surrounding the 

execution of the Sony Agreement, given that both agreements were executed months after 

discovery closed. See October 26 Order at 3. The Court therefore ordered: “Complaint Counsel is 

granted leave to serve requests for production of documents and data, interrogatories, notices of 

depositions, and subpoenas duces tecum and ad testificandum for the purpose of taking discovery 

relevant to the Ubisoft Agreement and the Sony Agreement.” October 26 Order at 4. 

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Respondents did not request—and the Court did not grant—leave for Respondents to take 

discovery. 

In the final days of the limited discovery period this Court ordered, Microsoft issued a 

subpoena duces tecum and a subpoena ad testificandum to Sony and two subpoenas ad 

testificandum to Ubisoft. See Exhibits A, B, C, D. Complaint Counsel raised the issue of the 

validity of Microsoft’s subpoenas in separate emails dated December 19 and December 21. See 

Exhibits E, F. Microsoft said it would respond “soon,” but never provided a substantive 

response. Exhibit E. Instead, Microsoft filed the motion at issue and subsequently referred 

Complaint Counsel to its motion. See Exhibit F. In its motion, Microsoft argued that its subpoena 

duces tecum to Sony is valid and suggested that the same is true for its subpoena ad 

testificandum. See Resp. Microsoft Corp.’s Mot. to Cert. to the Comm’n a Request for Court 

Enforcement of Nonparty Subpoena, December 21, 2023 (“Resp.’s Mot.”) at 9; see also id. at 4 

n.3 (representing that Microsoft intends to use half of the allocated time in the Sony corporate 

deposition and that the allocation of deposition time is “not presently at issue” because Sony had 

not objected). 

On December 28, 2023, Complaint Counsel met with Respondents in good faith to 

resolve the disagreement over the validity of Microsoft’s subpoenas. Complaint Counsel 

explained that Microsoft issued subpoenas without authority to do so and conveyed its position 

that Microsoft is entitled to 1.5 hours of deposition time in the third-party depositions that 

Complaint Counsel noticed. See Scheduling Order Additional Provision 12 (providing that the 

time for non-party depositions is allocated 5.5 hours to the side that subpoenaed the deposition 

and 1.5 hours for the side that did not). On December 31, 2023, Microsoft informed Complaint 

Counsel that it would not agree to abide by the appropriate allocation of deposition time under 

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this Court’s Scheduling Order. The following day, Complaint Counsel notified Respondents of 

its intent to file the instant motion. See Exhibit H. 

ARGUMENT 

I. Microsoft’s Subpoenas to Third Parties Are Not Valid 

Microsoft has not sought leave to take any discovery since fact discovery in this matter 

closed on April 7. Instead, Microsoft has consistently fought discovery, including by opposing 

Complaint Counsel’s request for third party discovery and by refusing to provide relevant 

discovery in violation of this Court’s October 26 Order. See Resp.’s Opposition at 8 (requesting 

that discovery be limited to five requests for production and one corporate deposition); Compl. 

Counsel’s Mot. to Compel Discovery Responses from Resp., December 20, 2023 (explaining 

that Respondents refuse to provide requested documents and noticed corporate testimony in 

violation of the Court’s October 26 Order). 

Microsoft also contacted at least one third party and communicated its view that 

After its attempt to obstruct Complaint Counsel’s discovery proved unsuccessful, 

Microsoft reversed course in the final days of discovery ordered by this Court and issued its own 

third-party subpoenas, with no authority to do so. This litigation tactic should not be allowed. If 

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Microsoft believed it needed discovery from third parties, it could have moved the Court for an 

order authorizing that discovery, which would have allowed the Court to consider whether good 

cause exists for Microsoft to obtain discovery (including in light of Microsoft’s efforts to 

obstruct Complaint Counsel’s ability to obtain discovery and Microsoft’s eleventh-hour reversal 

of its position). Rather than seeking leave from the Court to obtain out-of-time discovery like 

Complaint Counsel did, and as Microsoft is required to do by the Rules, Microsoft instead issued 

subpoenas without even notifying the Court. 

II. Microsoft Failed to Meet and Confer with Complaint Counsel as Required by 

This Court’s Scheduling Order and the Rules 

This Court’s Scheduling Order makes crystal clear that parties must confer with opposing 

counsel before raising disputes by motion before the Court. See Scheduling Order Additional 

Provision 4; see also 16 C.F.R. § 3.22(g); In re Lab Corp., 2011 FTC LEXIS 26, at *5-6 (Feb. 8, 

2011) (“Counsel for parties moving to compel discovery have a duty to make reasonable efforts 

to confer with opposing counsel before filing a motion to compel.”). 

Microsoft may have met with Sony, but the dispute over deposition time created by 

Microsoft’s deposition subpoenas is a dispute between Microsoft and Complaint Counsel. 

Microsoft appears to have attempted an end run around Complaint Counsel by cloaking the 

dispute about its deposition subpoenas as one that had been resolved by agreement with Sony, 

and by separately asking the Court to rule on the validity of its document subpoena. See Resp.’s 

Mot. at 4 n.3, 9.3

 But the validity of all four of Microsoft’s subpoenas is clearly raised by 

Microsoft’s motion, and whatever resolution Microsoft and Sony may have reached is not 

3

 Microsoft’s motion took the position that its deposition subpoena to Sony was not “presently at 

issue,”—even though Microsoft had not responded to Complaint Counsel’s December 19 and 

December 21 emails raising that exact issue. See Resp.’s Mot. at 4 n.3; Exhibits E, F. 

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relevant because it is Complaint Counsel’s (and Microsoft’s) deposition time at issue, not Sony’s 

deposition time. 

Failing to meet and confer with Complaint Counsel over this disputed issue is an 

independent basis for denying Microsoft’s motion and is warranted here.4 Notably, although this 

Court sometimes will overlook failure to meet-and-confer as a matter of discretion, see In re 

Benco Dental Supply Co., 2018 WL 4488326 at *1 n.1, No. 9379 (FTC Sept. 13, 2018), here 

Microsoft’s evasion was deliberate and warrants denial. See id. (citing In re Lab Corp., 2011 

FTC LEXIS 26, at *5-6 (Feb. 8, 2011) (denying motion where the party sent a single email 

before filing and did not wait for a response)). Microsoft’s evasion is more egregious than the 

failure at issue in Lab Corp., as Microsoft not only failed to discuss this issue at all with 

Complaint Counsel, but also failed to respond to Complaint Counsel’s outreach and used a 

contested motion involving a nonparty to put the issue before the Court. 

CONCLUSION 

For the foregoing reasons, Microsoft’s motion should be denied with prejudice. 

Dated: January 4, 2024 Respectfully submitted, 

By: /s/ Nicole Callan 

Nicole Callan 

Cem Akleman 

Maria Cirincione 

Meredith Levert 

James H. Weingarten 

4

 In addition to failing to meet and confer with Complaint Counsel at all, Microsoft failed to 

include a signed statement representing that its counsel had conferred with opposing counsel in a 

good faith effort to resolve the issues raised by the motion and reciting the date, time, and place 

of each conference between counsel. A meet and confer statement is required by Rule 3.22(g) 

and by this Court’s Scheduling Order. Microsoft’s failure to include the required statement is an 

independent ground on which Microsoft’s motion may be denied. See Scheduling Order 

Additional Provision 4 (“Motions that fail to include such separate statement may be denied on 

that ground.”). 

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Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-2234 

Email: ncallan@ftc.gov 

cakleman@ftc.gov 

mcirincione@ftc.gov 

mlevert@ftc.gov 

jweingarten@ftc.gov 

Counsel Supporting the Complaint 

10 
 

 

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UNITED STATES OF AMERICA 

BEFORE THE 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 

PUBLIC

STATEMENT REGARDING MEET AND CONFER PURSUANT TO SCHEDULING 

ORDER ADDITIONAL PROVISION 4 

Complaint Counsel respectfully submits this Statement, pursuant to Additional Provision 

4 of this Court’s Scheduling Order. Complaint Counsel has attempted to confer in good faith 

with counsel for Respondents Microsoft Corporation (“Microsoft”) and Activision Blizzard, Inc. 

(“Activision”) to resolve by agreement the issues raised in this motion and has been unable to 

reach an agreement. 

On December 12, 2023, Microsoft served a subpoena duces tecum and a subpoena ad 

testificandum on Sony Interactive Entertainment LLC. See Exhibits A, B. On December 20, 

2023, Microsoft served two subpoenas ad testificandum on Ubisoft Entertainment SA. See 

Exhibits C, D. Complaint Counsel raised the issue of the validity of Microsoft’s subpoenas in 

separate emails dated December 19 and December 21. See Exhibit E at 1-2, Exhibit F at 2. 

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Microsoft said it would respond “soon,” see Exhibit E at 1, but never provided a substantive 

response. Instead, Microsoft filed the motion at issue, and subsequently referred Complaint 

Counsel to its motion. See Exhibit F at 1. 

On December 28, 2023, Complaint Counsel met with Respondents in good faith to 

resolve the disagreement over the validity of the subpoenas as it relates to the allocation of 

deposition time. Complaint Counsel explained that Microsoft’s subpoenas to third parties are not 

valid, and that Microsoft is not entitled to split deposition time in the third-party depositions that 

Complaint Counsel properly noticed. 

On December 31, 2023, Microsoft informed Complaint Counsel that it would not agree to 

abide by the appropriate allocation of deposition time under this Court’s Scheduling Order. See 

Exhibit H at 1-2. On January 1, 2024, Complaint Counsel emailed Microsoft to confirm that the 

parties were at an impasse and notified Microsoft of its intent to file the instant motion. See id. at 

1. 

Dated: January 4, 2024 Respectfully submitted, 

By: /s/ Nicole Callan 

Nicole Callan 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-2234 

Email: ncallan@ftc.gov 

Counsel Supporting the Complaint 

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EXHIBIT A – EXHIBIT H 

CONFIDENTIAL 

REDACTED IN ENTIRETY 
 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 01/04/2024 OSCAR NO. 609287 -PAGE Page 14 of 15 * PUBLIC * 

CERTIFICATE OF SERVICE 

I hereby certify that on January 4, 2024, I filed the foregoing document electronically using the 

FTC’s E-Filing System, which will send notification of such filing to: 

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 foregoing document to be served via email to: 

Beth Wilkinson 

Rakesh Kilaru 

Alysha Bohanon 

Anastasia Pastan 

Grace Hill 

Sarah Neuman 

Kieran Gostin 

Wilkinson Stekloff LLP 

2001 M Street, NW 

Washington, DC 20036 

(202) 847-4010 

bwilkinson@wilkinsonstekloff.com 

rkilaru@wilkinsonstekloff.com 

abohanon@wilkinsonstekloff.com 

apastan@wilkinsonstekloff.com 

ghill@wilkinsonstekloff.com 

sneuman@wilkinsonstekloff.com 

kgostin@wilkinsonstekloff.com 

Mike Moiseyev 

Megan Granger 

Weil, Gotshal & Manges LLP 

2001 M Street, NW 

Washington, DC 20036 

(202) 682-7235 

michael.moiseyev@weil.com 

Steven Sunshine 

Julia K. York 

Jessica R.Watters 

Skadden, Arps, Slate, Meagher & Flom LLP 

1440 New York Ave, NW 

Washington, DC 20005 

(202) 371-7860 

steve.sunshine@skadden.com 

julia.york@skadden.com 

jessica.watters@skadden.com 

Maria Raptis 

Matthew M. Martino 

Michael Sheerin 

Evan R. Kreiner 

Bradley J. Pierson 

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West 

New York, NY 10001 

(212) 735-2425 

maria.raptis@skadden.com 

matthew.martino@skadden.com 

michael.sheerin@skadden.com 

evan.kreiner@skadden.com 

bradley.pierson@skadden.com 
 

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megan.granger@weil.com 

Counsel for Microsoft Corporation 

Counsel for Activision Blizzard, Inc. 

By: s/ Nicole Callan

 Nicole Callan 

Counsel Supporting the Complaint