PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/17/2023 | Document No. 607485 | PAGE Page 1 of 14 * PUBLIC *; 

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, 

Respondents. 

DOCKET NO. 9412

NON-PARTY STEVE SINGER’S MOTION TO QUASH COMPLAINT COUNSEL’S

UNTIMELY SUBPOENA AD TESTIFICANDUM TO STEVE SINGER 

Non-party Steve Singer (“Singer”) moves pursuant to 16 C.F.R. § 3.31 (“Rule 3.31”) and 

16 C.F.R. § 3.34(c) (“Rule 3.34(c)”) to quash the subpoena ad testificandum, dated March 29, 

2023, addressed to Mr. Singer (the “Singer Subpoena”) from Complaint Counsel. 

Complaint Counsel missed the March 3, 2023 deadline to serve the Singer Subpoena.

Complaint Counsel purports to have served the Singer Subpoena on March 29 or 30, 2023, and

there is no good cause for the delay. 

INTRODUCTION 

On or about February 2, 2022—two weeks after Microsoft announced its planned 

acquisition of Activision—the FTC contacted NOA to request interviews “with appropriate

individuals at Nintendo to discuss the Microsoft/Activision transaction.” In the initial

discussions regarding these interviews, the FTC repeatedly asked for “Nintendo’s concerns about

the transaction,” as well as “the personal opinions of [NOA’s] employees about the transaction.”

{
} 

Mr. Prata is NOA’s Executive Vice President for Product Development, Publishing and Strategic

 

 

 

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Initiatives. Mr. Singer is NOA’s Senior Vice President for Publisher and Developer Relations.

As his title indicates, Mr. Singer is responsible for NOA’s relationships with third-party game

publishers and developers such as Microsoft and Activision. Mr. Prata is responsible for NOA’s

own product development. Messrs. Prata and Singer are two of NOA’s most-senior executives.

{

} Thereafter, over the next several months, NOA counsel answered a

series of questions from Complaint Counsel regarding information from the interviews that

Complaint Counsel might wish to include in a declaration. 

{

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}

 

 

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On December 6, 2022, Microsoft announced that it had signed a Letter of Intent that

same day with Nintendo (the “LOI”), in which Microsoft committed to make Call of Duty titles 

available on Nintendo platforms after the Activision acquisition. {

}

After Complaint Counsel filed the current adjudicative proceeding, NOA received a

Subpoena for Production of Documentary Material, dated February 1, 2023, from Complaint

Counsel (the “FTC Subpoena”). {

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}

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Regardless of whether it was served on March 29 or 30, however, the Singer Subpoena

was not served on or before the March 3, 2023 deadline. In discussions leading up to this 

motion, Complaint Counsel stated that the primary reason for their delay was that “Microsoft and

Nintendo executed their agreement regarding Activision content on February 10, 2023—{

} This incorrect statement

conveniently ignores that the LOI was signed, and announced by Microsoft, on December 6, 

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2022. Mr. Singer should not bear the consequences of Complaint Counsel’s missed deadline,

and respectfully requests that the Court quash the Singer Subpoena. 

ARGUMENT

The Singer Subpoena was issued after the deadline, and was never properly served on 

Mr. Singer. As a result, it should be quashed. 

The deadline to serve subpoenas was March 3, 2023, with certain exceptions. Scheduling 

Order, In re Microsoft Corp. et al., FTC Dkt. No. 9412, at 1 (Jan. 4, 2023) (“Scheduling Order”). 

None of the exceptions apply here. Complaint Counsel purportedly served the Singer Subpoena

on March 29 or 30, 2023. Therefore, the Singer Subpoena is untimely, and should be quashed. 

The deadline to issue subpoenas in this proceeding was March 3, 2023:

Scheduling Order at 1. The exceptions for “discovery directed to witnesses who did not appear 

on either’s side’s preliminary lists” refers to (i) the preliminary witness lists disclosed by 

Complaint Counsel on January 17 and Respondents’ Counsel on January 24 (Scheduling Order 

at 1), and (ii) the scope of permissible depositions as governed by paragraph 11:

Scheduling Order at 6 ¶ 11. 

None of these exceptions apply to Mr. Singer. {

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} 

There is no good cause for excusing Complaint Counsel's failure to comply with the 

subpoena deadline. Complaint Counsel } was 

aware of the LOI as early as December 6, 2022 when Microsoft announced it. Complaint 

Counsel } did not ask who did until 

March 16, 2023-after the subpoena deadline. 

If the deposition of the NOA employee who negotiated with Microsoft is so important to 

Complaint Counsel's case, it could have asked Microsoft or Nintendo at any time after the LOI 

was announced on December 67 2022. 

} 

Complaint Counsel put itself in this position by not requiring Microsoft to produce the 

communications sooner, never asking Nintendo for the name of its primaiy negotiators until 

Mai·ch 16, 2023, and then waiting another two weeks before issuing the Singer Subpoena. 

The consequences of Complaint Counsel's delay and disregard for deadlines prejudice 

Mr. Singer and NOA. Mr. Singer is one of the top executives at NOA, 

1111} Mr. Singer and NOA should not beai· the burden of Complaint Counsel's delay and 

disregai·d for deadlines. 

Complaint Counsel failed to comply with a deadline, and that failure should have 

consequences. For these reasons, Mr. Singer and NOA respectfully request that the Singer 

Subpoena be quashed in its entirety. 

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CONCLUSION 

WHEREFORE, for good cause shown, Mr. Singer respectfully requests that Your Honor 

grant the requested relief and quash the subpoena ad testificandum and grant such other relief as 

Your Honor deems just and proper. 

Dated: April 10, 2023

Respectfully submitted, 

/s/ Leonard L. Gordon

Leonard. L. Gordon

Benjamin P. Argyle

Venable LLP 

151 W. 42nd Street, 49th Floor

New York, NY 10036 

(212) 307-5500

LLGordon@Venable.com

BPArgyle@Venable.com

Michael A. Munoz

Jay V. Prapaisilp

Venable LLP 

600 Massachusetts Ave., N.W.

Washington, D.C. 20001 

(202) 344-4000

MAMunoz@Venable.com

JVPrapaisilp@Venable.com

Counsel for Non-Parties Steve Singer

and Nintendo of America Inc.

8 
 

 

 

 

 

PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/17/2023 | Document No. 607485 | PAGE Page 9 of 14 * PUBLIC *; 

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, 

Respondents. 

DOCKET NO. 9412

STATEMENT OF LEONARD L. GORDON 

PURSUANT TO RULE OF PRACTICE 3.22(G) 

I am an attorney at Venable LLP. I represent non-parties Steve Singer and Nintendo of 

America Inc. in this matter. I submit this statement pursuant to 16 C.F.R. § 3.22(g). 

Unless otherwise indicated, all facts set forth in this Statement and in Non-Party Steve

Singer’s Motion to Quash Complaint Counsel’s Untimely Subpoena Ad Testificandum (the

“Motion”) are true and accurate to the best of my knowledge, based on my personal involvement

in the events discussed and my review of documents and correspondence related to this 

proceeding. 

I, and my colleague Benjamin P. Argyle, Esq., Venable LLP, have conferred with 

Complaint Counsel (Maria Cirincione and/or Taylor Alexander, Esqs.) in a good faith effort to 

resolve by agreement the issues raised in the Motion, but have been unable to reach such an

agreement. We met and conferred with Complaint Counsel multiple times, both via

teleconference and email correspondence, in an attempt to reach agreement regarding the

deposition of Mr. Singer and the Singer Subpoena:
 

 

 

 

 

 

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 On March 17, 2023, telephonically (at approximately 9:00 am ET) and via email

correspondence;

 On March 20, 2023, via email correspondence;

 On March 22, 2023, via email correspondence;

 On March 23, 2023, telephonically (at approximately 1:45 pm ET) and via email

correspondence;

 On March 27, 2023, telephonically (at approximately noon ET);

 On March 29, 2023, via email correspondence;

 On March 31, 2023, via email correspondence;

 On April 3, 2023, via email correspondence;

 On April 4, 2023, via email correspondence;

 On April 6, 2023, via email correspondence; and

 On April 7, 2023, telephonically (at approximately 10:00 am ET). 

Although these communications have been productive, we have not yet reached 

agreement on any portion of the Singer Subpoena.

Dated: April 10, 2023

Respectfully submitted, 

/s/ Leonard L. Gordon

Leonard. L. Gordon

Benjamin P. Argyle

Venable LLP 

151 W. 42nd Street, 49th Floor

New York, NY 10036 

(212) 307-5500

LLGordon@Venable.com

BPArgyle@Venable.com

Michael A. Munoz

Jay V. Prapaisilp

Venable LLP 

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600 Massachusetts Ave., N.W.

Washington, D.C. 20001 

(202) 344-4000

MAMunoz@Venable.com

JVPrapaisilp@Venable.com

Counsel for Non-Parties Steve Singer

and Nintendo of America Inc.

3 
 

 

 

__________________________ 

PUBLIC RECORD FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/17/2023 | Document No. 607485 | PAGE Page 12 of 14 * PUBLIC *; 

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, 

Respondents. 

DOCKET NO. 9412

[PROPOSED] ORDER GRANTING MOTION TO QUASH COMPLAINT COUNSEL’S 

SUBPOENA AD TESTIFICANDUM TO STEVE SINGER

On April 10, 2023, non-party Steve Singer (“Singer”) filed a Motion to Quash Complaint

Counsel’s Subpoena ad testificandum to Steve Singer (“Motion”). 

Singer has demonstrated good cause for the requested relief. Accordingly, the Motion is 

GRANTED, and it is hereby ORDERED that Complaint Counsel’ Subpoena ad testificandum to 

Steve Singer, dated March 29, 2023, is QUASHED in its entirety. 

D. Michael Chappell

Chief Administrative Law Judge

Date: ________, 2023
 

 

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CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of April 2023, I filed the foregoing document

electronically using the Federal Trade Commission’s e-filing system, which will send 

notification of such filing to:

April Tabor The Honorable D. Michael Chappell

Secretary Administrative Law Judge

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm H-113 600 Pennsylvania Ave., NW, Rm H-110

Washington, DC 20580 Washington, DC 20580 

ElectronicFilings@ftc.gov 

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

Complaint Counsel

James H. Weingarten (jweingarten@ftc.gov)

James Abell (jabell@ftc.gov) 

Cem Akleman (cakleman@ftc.gov)

Taylor Alexander (talexander@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)

Merrick Pastore (mpastore@ftc.gov)

Stephen Santulli (ssantulli@ftc.gov)

Edmund Saw (esaw@ftc.gov) 

David E. Morris (dmorris1@ftc.gov)

U.S. Federal Trade Commission

600 Pennsylvania Ave., N.W.

Washington, DC 20580 

Telephone: (202) 326-3570 

Counsel for Respondent Microsoft Corp.

Beth Wilkinson (bwilkinson@wilkinsonstekloff.com) 

Rakesh Kilaru (rkilaru@wilkinsonstekloff.com) 

Alysha Bohanon (abohanon@wilkinsonstekloff.com) 

Anastasia Pastan (apastan@wilkinsonstekloff.com) 

Grace Hill (ghill@wilkinsonstekloff.com)
 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/17/2023 | Document No. 607485 | PAGE Page 14 of 14 * PUBLIC *; 

Sarah Neuman (sneuman@wilkonsonstekloff.com)

Wilkinson Stekloff LLP 

2001 M Street, NW

Washington, DC 20036 

(202) 847-4010

Mike Moiseyev (michael.moiseyev@weil.com)

Megan Granger (megan.granger@weil.com)

Weil, Gotshal & Manges LLP 

2001 M Street, NW

Washington, DC 20036 

(202) 682-7235

Counsel for Respondent Activision-Blizzard, Inc. 

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) 

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

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

Andrew D. Kabbes (andrew.kabbes@skadden.com) 

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

Skadden, Arps, Slate, Meagher & Flom LLP 

One Manhattan West

New York, NY 10001

Telephone: (212) 735-2425 

/s/ Benjamin P. Argyle

Benjamin P. Argyle

Venable LLP

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