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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

Microsoft Corp., 

a corporation, 

Docket No. 9412 

and 

Activision Blizzard, Inc., 

a corporation. 

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 

INTRODUCTION 

When Microsoft announced the proposed acquisition of Activision, Sony Interactive 

Entertainment’s (“SIE”) President and CEO, Jim Ryan, wrote to a friend and mentor that the 

acquisition was “not an xbox exclusivity play at all” and that SIE would be “more than OK” if the 

deal were consummated. Ex. A, Email from Jim Ryan re: MS acquisition of Activision at -001 

(Jan. 20, 2022), RX2064, SIE-MSFT-10367176. In stark contrast to this candid, private 

assessment, SIE has long outwardly and vocally claimed—including to competition authorities 

around the world—that the acquisition would be harmful. Just days after Microsoft prevailed in 

the FTC’s preliminary injunction action, SIE inked a 10-year licensing deal with Microsoft for 

Call of Duty (“Microsoft-Sony Agreement”) that guarantees SIE better terms than it had with 

Activision. One would think that would have marked the end of SIE’s campaign against the 

Microsoft-Activision deal. It did not. 

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As Microsoft recently learned upon rece1vmg SIE's cheny-picked 52-document 

production in response to the FTC's subpoena related to the Microsoft-Sony Agreement, _ 

Specifically, SIE's production included a letter 

Microsoft is entitled to take discove1y to test SIE's asse1i ions and seeks a nanow, targeted 

production of documents from SIE related to the Microsoft-Sony Agreement. But SIE has not 

committed to produce a single document in response to Microsoft's subpoena and has insisted that 

its production to the FTC is sufficient to satisfy Microsoft's subpoena, despite not having 

conducted proper custodial searches. Microsoft therefore moves pursuant to 16 C.F.R. § 3.38(c) 

for an order ce1iifying to the Commission a request to enforce Microsoft's subpoena in federal 

district comi . See In re Illumina, Inc., No. 9401 , 2021 WL 3803658, at *4 (F.T.C. Aug. 17, 2021) 

(granting Respondents ' motion to ce1i ify district comi enforcement of subpoenas issued to a 

nonpaiiy); In re Axon Enter., Inc., No. 9389, 2020 WL 5543022, at *5 (F.T.C. Sept. 4, 2020) 

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(same); In re Traffic Jam Events, LLC, No. 9395, 2021 WL 3808940, at *3 (F.T.C. Aug. 10, 2021) 

(granting Complaint Counsel’s motion to certify district court enforcement of subpoenas issued to 

a nonparty). 

FACTUAL AND PROCEDURAL BACKGROUND 

This Court is well acquainted with SIE’s central role in the FTC’s case and SIE’s nearly 

two-year effort to thwart this acquisition. For its part, Microsoft has sought to quell any concern 

by SIE and the gaming community that this acquisition would result in SIE losing access to 

Activision’s most notable franchise, Call of Duty (“CoD”), and has publicly stated its commitment 

to ensure CoD would remain on PlayStation. E.g., Ex. D, Phil Spencer, Twitter (Jan. 20, 2022), 

https://twitter.com/XboxP3/status/1484273335139651585 (“Had good calls this week with 

leaders at Sony. I confirmed our intent to honor all existing agreements upon acquisition of 

Activision Blizzard and our desire to keep Call of Duty on PlayStation.”). But that was not all. 

While the deal was undergoing regulatory review, Microsoft made written contractual offers for 

CoD to Sony, which Sony rebuffed, presumably because entering into a long-term agreement on 

CoD would have significantly undercut the FTC’s case and greatly improved the acquisition’s 

chances of success. 

In any event, after Microsoft defeated the FTC’s preliminary injunction motion, SIE 

ultimately did sign an agreement with Microsoft on highly favorable terms. Complaint Counsel 

then moved to reopen discovery related to the Microsoft-Sony Agreement. Microsoft objected to 

the breadth of Complaint Counsel’s request but confirmed it would be open to tailored discovery 

to ensure that the Agreement could be introduced at the upcoming evidentiary hearing, given the 

Agreement’s centrality to any analysis of the acquisition’s competitive effects. This Court granted 

Complaint Counsel’s motion in part and reopened discovery “relevant to the Ubisoft Agreement 

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and the Sony Agreement.” Order On Complaint Counsel’s Motion To Allow Discovery Regarding 

Respondents’ Agreements With Ubisoft Entertainment SA And Sony Interactive Entertainment 

LLC at 4 (Oct. 26, 2023) (“Order Reopening Discovery”). 

The FTC then subpoenaed documents from SIE. SIE produced a total of 52 documents, 

fewer than half of which relate to the Microsoft-Sony Agreement.

2 There are virtually no internal 

documents evidencing why SIE entered the Agreement or 

After receiving SIE’s production and seeing for the 

first time, Microsoft subpoenaed SIE seeking documents related to the Microsoft-Sony Agreement 

and the Microsoft-Ubisoft Agreement.3 Microsoft’s subpoena specifically noted concerns that SIE 

had produced a selective set of documents in response to the FTC’s subpoena and conveyed that 

Microsoft’s subpoena was intended to capture a more balanced and complete set of materials. See 

Ex. E, Respondent Microsoft Corp.’s Attachment to Subpoena Duces Tecum To Sony Interactive 

Entertainment LLC at 8 (Dec. 12, 2023). 

SIE provided responses and objections to Microsoft’s subpoena on December 17, 2023. 

During a meet and confer the following day, SIE expressed its view that its prior collection and 

production of 52 documents to the FTC was “reasonable” and that in any event Microsoft was not 

authorized to take any discovery of SIE. Notwithstanding those objections—and perhaps 

recognizing the importance of the Microsoft-Sony Agreement to the FTC’s claims and the 

2 During the meet and confer process, SIE’s counsel revealed that SIE’s method for collecting 

documents was to inquire who at the company might have relevant information and then to ask 

those individuals to provide their relevant documents. SIE ultimately collected documents from 

seven individuals. 

3 Microsoft also counter-noticed the FTC’s deposition subpoena for a corporate representative of 

SIE, but that notice is not presently at issue given SIE’s representations that they will not object to 

Microsoft using half of the allotted deposition time. 

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insufficiency of SIE's prior production-SIB agreed to consider a reasonable search-te1ms-based 

collection and review of documents in response to Microsoft's subpoena. Ex. F, Email from Sarah 

Neuman, Wilkinson Stekloff LLP, to Lany Malm, Clea1y Gottlieb Steen & Hamilton LLP (Dec. 

18, 2023). 

Microsoft shared a proposal the following morning that genuinely endeavored to minimize 

the burden on SIE. Ex. G, Email from Sarah Neuman, Wilkinson Stekloff LLP, to Lany Malm, 

Cleaiy Gottlieb Steen & Hamilton LLP (Dec. 19, 2023). In short, Microsoft proposed that SIE 

search the files of six custodians for the nanow timeframe covering the period from SIE's prior 

collections in this matter to present, and then nm only four highly tai·geted seai·ch strings across 

those custodians' files.

4 Id. Late that evening, SIE responded it would not agree to Microsoft's 

proposal. Ex. H, Email from Lany Malm, Cleaiy Gottlieb Steen & Hamilton LLP, to Sai·ah 

Neuman, Wilkinson StekloffLLP (Dec. 19, 2023). 

Given the impending close of discove1y and the upcoming Sony co1porate witness 

deposition contemplated for Januaiy 17, 2024, and to protect its rights, Microsoft now moves 

pursuant to 16 C.F.R. § 3.38(c) for an order ce1iifying to the Commission a request to enforce the 

subpoena in federal district comi. 

4 Microsoft proposed the following search te1ms: 

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LEGAL STANDARD 

“[P]arties may obtain discovery to the extent that it may be reasonably expected to yield 

information relevant to the allegations of the complaint, to the proposed relief, or to the defenses 

of any respondent.” Order On Motion Of Sony Interactive Entertainment LLC To Quash Or Limit 

Subpoena Duces Tecum at 2 (Feb. 23, 2023) (“SIE I”). “[E]ven where a subpoenaed third party 

adequately demonstrates that compliance with a subpoena will impose a substantial degree of 

burden, inconvenience, and cost, that will not excuse producing information that appears generally 

relevant to the issues in the proceeding.” Id. When the party in violation of a subpoena is a 

nonparty, upon motion of a party, the ALJ “shall certify to the Commission a request that court 

enforcement of the subpoena or order be sought.” 16 C.F.R. § 3.38(c); see also In re Traffic Jam 

Events, No. 9395, 2021 WL 2379542, at *5 (F.T.C. May 13, 2021). 

ARGUMENT 

I. Microsoft Seeks Highly Relevant Discovery And Has Proposed A Minimally 

Burdensome Search Methodology. 

There is no dispute that the Microsoft-Sony Agreement is highly relevant to the question 

whether Microsoft’s acquisition of Activision substantially lessens competition. Ex. I, Order 

Reopening Discovery at 3 (Oct. 26, 2023) (“[T]here is no dispute as to the relevance of the 

agreement[] . . . .”); Ex. J, Mem. in Supp. of Compl. Counsel’s Mot. to Extend Fact Discovery at 

6 (Oct. 10, 2023) (“[T]he agreement[] and [its] possible effects on American consumers in the 

relevant markets present complex questions of fact that require additional discovery.”). Nor can 

SIE credibly argue that its production to the FTC on this issue was “reasonable” or sufficient. SIE 

and Microsoft engaged on a potential CoD deal over the course of months. It is simply implausible 

that additional emails and other documents assessing whether to enter into an agreement with 

Microsoft, the potential effects of that agreement, or how to message the agreement (among other 

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topics) do not exist. SIE's counsel represented dming the meet and confer process that although 

SIE did not provide the FTC with a privilege log, SIE withheld fewer than 25 documents on 

privilege grounds. SIE 's selective production of documents was plainly intended to skew the sto1y 

in its (and the FTC's) favor. 

Microsoft identified minimally burdensome search parameters that would enable Microsoft 

to discover SIE's internal assessment of the deal it has . The 

date range is cabined to the shortest possible window of time. And Microsoft proposed only four 

search strings that would capture highly relevant materials that go directly to the core question of 

whether Microsoft's acquisition of Activision will hann competition. These aspects ofMicrosoft's 

proposal went uncontested by SIE. 

Instead, SIE makes vague arguments about burden, which cannot cany the day, see SIE I 

at 2-3, and requested that Microsoft "identify a more reasonable set" of custodians. Ex. H, Email 

from Lany Malm, Cleaiy Gottlieb Steen & Hamilton LLP, to Sarah Neuman, Wilkinson Stekloff 

LLP, (Dec. 19, 2023). But Microsoft's proposal included /ewer individuals than SIE collected 

from in response to the FTC's subpoena, see supra note 1, and most of Microsoft's proposed 

custodians were custodians for purposes of Sony's response to Microsoft's earlier subpoena. 

Specifically, Microsoft proposed collections from: 

• Jim Ryan, President & CEO, who has been involved in discussions about the 

Microsoft-Son A ·eement and 

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Senior Vice President & General Counsel, . 6 

• Greg Mccurdy, Senior Director, Competition & Regulatory Affairs, who has 

led Sony 's regulato1y effo1i related to Microsoft's acquisition ofActivision and has 

been involved in discussions relating the Microsoft-Sony Agreement;

8 

• Phil Rosenberg, Senior Vice President, Head of Global Partner Development 

& Relations, who leads Sony's third-paiiy relationships and has helped lead 

discussions with Microsoft post-acquisition over content licensing; 

• Christian Svensson, Senior Global Account Manager, who leads Sony's day-today relationship with Activision. 

fu objecting to these six key custodians, SIE did not offer a counte1proposal or provide any 

explanation as to how Microsoft's custodians proposal is overly bmdensome or dispropo1iionate 

to the needs of this case. SIE observed that the list includes three lawyers. That is not smprising 

or unreasonable given that discove1y is being sought on the topic of contract negotiations. SIE has 

previously raised similai· concerns that were not credited. See SIE I at 4 (rejecting SIE's request 

to exclude SIE attorney Greg McCmdy as a custodian because, in paii, "[i]n-house counsel are not 

immune from discove1y merely by virtue of their role as lawyers, nor does SIE contend 

othe1wise"). Moreover, Microsoft included fom lawyers as custodians (and many more total 

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custodians) in responding to the FTC’s recent requests for production. Sony’s non-compliance 

with the subpoena is unjustified. 

II. Microsoft’s Subpoena Was Properly Issued. 

SIE has separately objected to Microsoft’s subpoena on the ground that Microsoft was not 

authorized to serve discovery at all. SIE points to language in the Court’s order reopening 

discovery that limits the scope of Complaint Counsel’s discovery. See Order Reopening Discovery 

at 4. Microsoft understood those limitations to adjudicate the scope dispute between Microsoft 

and Complaint Counsel but not to prohibit Microsoft from taking reciprocal discovery from third 

parties. 

SIE also asserted during the meet and confer process that Microsoft is barred from taking 

discovery because Microsoft opposed the reopening of discovery that Complaint Counsel sought. 

That untenable rule would result in parties never opposing additional discovery for fear that any 

later-permitted discovery would not be reciprocal. At bottom, it would be unfair and prejudicial 

for discovery to proceed in the one-sided fashion SIE proposes. 

CONCLUSION 

For the foregoing reasons, Microsoft requests that the Court certify to the Commission a 

request to enforce Microsoft’s subpoena by seeking a court order requiring SIE to search the 

custodial files of Microsoft’s six proposed custodians using the search terms identified in 

Microsoft’s December 19, 2023 email to SIE’s counsel. See Ex. G, Email from Sarah Neuman, 

Wilkinson Stekloff LLP, to Larry Malm, Cleary Gottlieb Steen & Hamilton LLP (Dec. 19, 2023); 

supra note 4. 

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Dated: December 21, 2023 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 December 21, 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) 

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 

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D. Bruce Hoffman (bhoffman@cgsh.com) 

Leah Brannon (lbrannon@cgsh.com) 

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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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Microsoft Corp., 

a corporation; 

Docket No. 9412 

and 

ACTIVISION BLIZZARD, INC. 

a corporation. 

[PROPOSED] ORDER GRANTING 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 

Upon consideration of Respondent Microsoft Corp.’s (“Microsoft”) Motion To Certify To 

The Commission A Request For Court Enforcement Of Subpoena Duces Tecum Issued To 

Nonparty Sony Interactive Entertainment LLC (“SIE”) (the “Motion”), it is HEREBY 

ORDERED that Microsoft’s request for court enforcement of the Subpoena Duces Tecum 

issued to SIE be and hereby is certified to the Commission, with the recommendation that district 

court enforcement be sought; and 

IT IS FURTHER RECOMMENDED that the subpoena be enforced against SIE consistent 

with the proposal offered by Microsoft. That is, SIE should be ordered to complete a custodial 

document search of the files of Jim Ryan, Stephanie Burns, Roxana Niktab, Greg McCurdy, Phil 

Rosenberg, and Christian Svensson between the date of collection(s) in response to Microsoft’s 

prior subpoena to SIE and the date of collection(s) in response to Microsoft’s present subpoena to 

SIE using the following search strings: 

1 
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ORDERED: 

D. Michael Chappell 

ChiefAdministrative Law Judge 

Date: 

2 
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EXHIBIT A 
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From: 

To: chrisdeering 

Sent: 1/20/2022 7:10:36 AM 

Subject: RE: MS acquisition of Activision. 

I think that was overdone. 

That said, at almost $130, I think it was a bit toppy. 

From: chris deering 

Sent: 20 January 2022 15:01 

To: Ryan, Jim 

Subject: Re: MS acquisition of Activision. 

OK then I shouldn't worry that Sony stock dropped 12% 

Cheers, 

On Thursday, January 20, 2022, 02:52:57 PM GMT, Jim.R a rote: 

It's not an xbox exclusivity play at all, they're thinking bigger than that, and they have the cash to make moves like this. I've 

spent a fair bit of time with both Phil and Bobby over the past day, I'm pretty sure we will continue to see COD on PS for 

many years to come. 

We have some good stuff cooking. Keep your eyes peeled. 

I'm not complacent and I'd rather this hadn't happened, but we'll be ok, more than OK. 

From: chris deering 

Sent: 19 January 2022 13:20 

To: Ryan, Jim <1111••••••> 

Subject: MS acquisition of Activision. 

Phil Spencer was in CNBC saying that the acquisition would cement MS as a player in mobile 

games. Strikes me as more of a King play than COD. But King sold to Bobby for $5Billion and has 

now grown to be worth £50 Billion. If it was a Xbox exclusivity play. Spencer could have locked up MS 

console exclusivity for the next 3 COD releases for maybe £5 Billion. 

CONFIDENTIAL - FTC Docket No. 9412 SIE-MSFT-1 0367176 

RX2064-001 
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The major cash out will lure most of the talent to take the money and run as fast as their contracts 

will allow, leaving MS with very gnarly management challenge. I bet Yves is smiling like the Cheshire 

cat. 

If this was a play to end run PSS etc, I think it was massively overvalued and wil l not meaningfully 

succeed. I guess MS can piss away that kind of valuation without being more harmed than helped, 

but I an not losing a wink of sleep over the future for our baby. Hope you agree. 

Cheers. 

Chris 

PS they would have been better off announcing a new Electric Car 

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom 

they are addressed. If you have received this email in error please notify siee.postmaster@sony.com 

This footnote also confirms that this email message has been checked for all known viruses. 

Sony Interactive Entertainment Europe Limited 

Registered Office: 10 Great Marlborough Street, London W1 F 7LP, United Kingdom 

Registered in England: 3277793 

P Please consider the environment before printing this e-mail 

CONFIDENTIAL- FTC Docket No. 941 2 SIE-MSFT-1 0367177 

RX2064-002 
 

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EXHIBIT B 

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

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EXHIBIT C

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
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EXHIBIT D
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.

IR\i Phil Spencer O 

\(,.JI @XboxP3 

Had g,ood calls this week 'With leaders at Sony. II 

confirmed our intent to honor all ,existing agr,eeme111ts 

upon acqui.sition of Activision Bliz.zard and our desire 

to lkeep Call of Duty on PlayStation. Sony is an 

important part of our industry, and we value our 

relationship. 

4:15 PM• Jan 20, 2022 • Twitter Web App 
 

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EXHIBIT E

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
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EXHIBIT F
 

 

 

 

 

 

 

From: Sarah Neuman

To: Malm, Larry; Anthony Ferrara

Cc: Kieran Gostin; Coraor, Everett

Subject: RE: Matter of Microsoft Corp. and Activision Blizzard | Sony Subpoenas

Date: Monday, December 18, 2023 6:13:08 PM

Larry,

Microsoft consents to a one-day extension of the return date, to 12/19, to permit further discussions

on a reasonable search-terms-based collection and review.

Thanks,

Sarah

From: Malm, Larry <lmalm@cgsh.com> 

Sent: Monday, December 18, 2023 3:34 PM

To: Sarah Neuman <sneuman@wilkinsonstekloff.com>; Anthony Ferrara

<aferrara@wilkinsonstekloff.com>

Cc: Kieran Gostin <kgostin@wilkinsonstekloff.com>; Coraor, Everett <ecoraor@cgsh.com>

Subject: RE: Matter of Microsoft Corp. and Activision Blizzard | Sony Subpoenas

Sarah, Anthony, Thank you for speaking earlier. Can we hop back on around 4 to update?

—

Larry Malm

Cleary Gottlieb Steen & Hamilton LLP

2112 Pennsylvania Avenue, NW

Washington, DC 20037 

T: +1 202 974 1959 | M: +1 203 464 8024 

lmalm@cgsh.com | clearygottlieb.com

Pronouns: he/him/his

From: Sarah Neuman <sneuman@wilkinsonstekloff.com> 

Sent: Monday, December 18, 2023 9:07 AM

To: Malm, Larry <lmalm@cgsh.com>; Anthony Ferrara <aferrara@wilkinsonstekloff.com>

Cc: Kieran Gostin <kgostin@wilkinsonstekloff.com>; Coraor, Everett <ecoraor@cgsh.com>

Subject: RE: Matter of Microsoft Corp. and Activision Blizzard | Sony Subpoenas

Noon works for us. We will circulate an invite.

Sarah Neuman | Counsel

WILKINSON STEKLOFF LLP

2001 M Street NW, 10th Flr, Washington, DC 20036

Direct: (202) 804-4238 | Fax: (202) 847-4005

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sneuman@wilkinsonstekloff.com

wilkinsonstekloff.com

From: Malm, Larry <lmalm@cgsh.com> 

Sent: Sunday, December 17, 2023 8:02 PM

To: Anthony Ferrara <aferrara@wilkinsonstekloff.com>

Cc: Kieran Gostin <kgostin@wilkinsonstekloff.com>; Sarah Neuman

<sneuman@wilkinsonstekloff.com>; Coraor, Everett <ecoraor@cgsh.com>

Subject: RE: Matter of Microsoft Corp. and Activision Blizzard | Sony Subpoenas

All,

Please see attached. Please let us know if noon works for a meet and confer tomorrow.

Kind regards,

Larry

—

Larry Malm

Cleary Gottlieb Steen & Hamilton LLP

2112 Pennsylvania Avenue, NW

Washington, DC 20037 

T: +1 202 974 1959 | M: +1 203 464 8024 

lmalm@cgsh.com | clearygottlieb.com

Pronouns: he/him/his

From: Anthony Ferrara <aferrara@wilkinsonstekloff.com> 

Sent: Tuesday, December 12, 2023 12:51 PM

To: Malm, Larry <lmalm@cgsh.com>

Cc: Kieran Gostin <kgostin@wilkinsonstekloff.com>; Sarah Neuman

<sneuman@wilkinsonstekloff.com>

Subject: Matter of Microsoft Corp. and Activision Blizzard | Sony Subpoenas

Larry,

Thank you for agreeing to accept service on behalf of Sony. As discussed with Sarah, I’m attaching

both the document subpoena and the deposition subpoena to this email. We are also having copies

couriered to your office.

We’re available to meet and confer on the documents subpoena this week. Thank you.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 25 of 62 * -PUBLIC 
 

 

 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 26 of 62 * -PUBLIC 

Best, 

Anthony 

Anthony P. Ferrara | Associate 

WILKINSON STEKLOFF LLP 

2001 M Street NW, 10th Flr, Washington, DC 20036 

Direct: (202) 847-4024 | Fax: (202) 847-4005 

aferrara@wilkinsonstekloff.com 

wilkinsonstekloff.com 

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This message is being sent from a law firm and may contain confidential or privileged information. If you are not the intended recipient, 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 27 of 62 * -PUBLIC 

EXHIBIT G

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 28 of 62 * -PUBLIC 

EXHIBIT H

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
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EXHIBIT I
 

 

 

 

 

 

 

 

 

 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 30 of 62 * -PUBLIC 

__________________________________________ 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Microsoft Corp., )

 a corporation, and ) 

) Docket No. 9412 

Activision Blizzard, Inc., )

 a corporation, ) 

) 

Respondents. ) 

__________________________________________) 

ORDER ON COMPLAINT COUNSEL’S MOTION TO ALLOW DISCOVERY 

REGARDING RESPONDENTS’ AGREEMENTS WITH UBISOFT 

ENTERTAINMENT SA AND SONY INTERACTIVE ENTERTAINMENT LLC 

I. 

On October 10, 2023, Federal Trade Commission (“FTC” or “Commission”) Complaint 

Counsel filed a motion seeking to reopen fact discovery in this matter, which closed on April 7, 

2023 (“Motion”). Specifically, Complaint Counsel requests an order to reopen discovery for an 

eight-week period to take discovery regarding certain agreements that Respondents Microsoft 

Corp. (“Microsoft”) and Activision Blizzard, Inc. (“Activision”) executed with non-parties 

Ubisoft Entertainment SA (“Ubisoft”) and Sony Interactive Entertainment LLC (“Sony”) after 

the discovery deadline. 1

 Microsoft filed an opposition on October 20, 2023 (“Opposition”). For 

the reasons set forth below, Complaint Counsel’s Motion is GRANTED IN PART. 

II. 

On December 8, 2022, the FTC filed an administrative complaint seeking to enjoin 

Microsoft from acquiring Activision. On June 12, 2023, the FTC filed a complaint in the United 

States District Court for the Northern District of California seeking to preliminarily enjoin the 

acquisition pending completion of the administrative proceeding. After an evidentiary hearing, 

on July 10, 2023, the district court denied the request for a preliminary injunction. FTC v. 

Microsoft Corp., 2023 U.S. Dist. LEXIS 119001 (N.D. Cal. July 10, 2023). On July 12, 2023, the 

Commission appealed the district court’s decision. The United States Court of Appeals for the 

Ninth Circuit denied the Commission’s motion for an injunction to prevent the consummation of 

1 Although Complaint Counsel titled its motion as a “Motion to Extend Fact Discovery,” because the discovery 

deadline has long-since passed, the motion is more properly considered a motion to reopen discovery. 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 31 of 62 * -PUBLIC 

the merger pending appeal. FTC v. Microsoft Corp., 2023 U.S. App. LEXIS 17985 (9th Cir. July 

14, 2023). Oral argument on the appeal is set for December 6, 2023. 

On July 20, 2023, the Commission withdrew this matter from adjudication pursuant to 16 

C.F.R. § 3.26(c). See Order, In re Microsoft Corp. & Activision Blizzard, Inc., No. 9412 (July 20, 

2023). On September 26, 2023, the Commission returned this matter to adjudication and set the 

evidentiary hearing to commence twenty-one days after the Ninth Circuit issues its opinion on the 

appeal of the district court decision. See Order Returning Matter to Adjudication, In re Microsoft 

Corp. & Activision Blizzard, Inc., No. 9412 (Sept. 26, 2023). On October 13, 2023, Microsoft 

and Activision closed the acquisition. 

Complaint Counsel describes the Ubisoft agreement as consisting of three separate 

contracts executed in August 2023, by and among Microsoft, Activision, and Ubisoft 

(collectively, the “Ubisoft Agreement”) that together purport to transfer to Ubisoft the rights to 

stream Activision content over the cloud. Complaint Counsel states that Respondents’ counsel 

provided the Ubisoft Agreement to Complaint Counsel on August 28, 2023 and provided an 

overview of the terms of the agreements via videoconference. Complaint Counsel notes that, 

because the agreement was executed after the discovery deadline, Complaint Counsel has not 

had the opportunity to obtain discovery regarding the Ubisoft Agreement. 

Complaint Counsel describes the Sony agreement as an agreement executed on July 15, 

2023, by and between Microsoft and Sony (the “Sony Agreement”) that purports to offer the 

video game series “Call of Duty” on PlayStation and PlayStation Plus (Sony’s video game 

subscription service). Complaint Counsel acknowledges that the Sony Agreement is 

and that Complaint Counsel has taken 

discovery on the proposed agreement, but argues that, because the Sony Agreement was 

executed after the discovery deadline, Complaint Counsel has not had the opportunity to take 

discovery regarding Sony’s decision to sign the Sony Agreement. 

Microsoft asserts that if this case proceeds to an administrative hearing, it intends to 

introduce both agreements as evidence that the Commission’s claim that Microsoft will withhold 

Activision content from competitors is unfounded and contradicted by real-world facts. 

Microsoft states that there has already been discovery into the Sony Agreement (before it was 

signed), and, to ensure the Ubisoft Agreement can be introduced at a hearing, Microsoft does not 

oppose some additional discovery. Microsoft argues, however, that the discovery plan presented 

by Complaint Counsel is not appropriately limited or tailored. 

III. 

Discovery may be allowed after the discovery deadline has passed, provided there is good 

cause to do so. See In re LabMD, Inc., No. 9357, 2014 FTC LEXIS 307, at *9 (Dec. 8, 2014) 

(granting in part Complaint Counsel’s motion to reopen discovery to allow limited deposition of 

defense witness in advance of testimony in order to advance public interest in effective crossexamination); In re Basic Research, LLC, No. 9318, 2005 FTC LEXIS 165, at *7-8 (Nov. 22, 

2005) (denying respondent’s motion to reopen discovery for failure to meet burden of 

demonstrating good cause, where respondent had failed to establish relevance of the requested 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 32 of 62 * -PUBLIC 

discove1y); In re Rambus, Inc. , No. 9302, 2003 FTC LEXIS 44, at *2-3 (Mar. 12, 2003) (denying 

Complaint Counsel's motion to talce additional deposition testimony after discove1y deadline 

where Complaint Counsel had sufficient opportunity to obtain the requested testimony prior to 

deadline); see also FTC Rule 3.21(c)(2) (pennitting the Administrative Law Judge to extend any 

deadline or time specified in a scheduling order for good cause); In re Traffic Jam Events, LLC, 

No. 9395, 2021 WL 3465709, at *1 (F.T.C. July 23, 2021) (Good cause exists to extend a 

scheduling order deadline under Rule 3.21(c)(2) when the deadline "cannot be met despite the 

diligence ofthe paiiy seeking the extension."). 

fu the instant case, good cause exists to grant additional time for limited discove1y on the 

Ubisoft and Sony Agreements. First, there is no dispute as to the relevance of the agreements, 

given that Microsoft intends to offer the agreements into evidence at the evidentiaiy heai·ing to 

support its defense. See Rule 3.3 l(c)(l) (allowing discove1y where relevant, inter alia, "to the 

defenses of any respondent"). Second, there is no basis for finding that Complaint Counsel 

lacked diligence in failing to undertake discove1y into the agreements prior to the discove1y 

deadline because the agreements were not executed until months after the deadline. See Traffic 

Jam Events, 2021 WL 3465709, at * 1. While Complaint Counsel has talcen discove1y of 

Microsoft's offer to Sony, Complaint Counsel had no opportunity to talce discove1y regarding the 

circumstances smrnunding Sony's decision in July 2023 to accept the offer and Complaint 

Counsel had no opportunity to take any discove1y ofthe Ubisoft Agreement. Third, reopening 

discove1y for the limited period requested will not risk delaying the evidentiaiy heai·ing in this 

matter because, pmsuant to the Commission order retmning this matter to adjudication, the 

evidentiaiy hearing will not begin until twenty-one days after the disposition ofthe appeal before 

the Ninth Circuit. 

IV. 

Although good cause exists to reopen fact discove1y to allow discove1y regai·ding the 

Ubisoft and Sony Agreements, the discove1y requested by Complaint Counsel in its proposed 

order is unduly extensive. Complaint Counsel seeks to serve on Respondents a total of20 new 

requests for production of documents and 15 new intenogatories. See Motion, Proposed Order at 

1-2. The number ofnew requests for production (20) and new inten ogatories (15) sought by 

Complaint Counsel is dispropo1iionately lai·ge in relation to the number of requests for 

production (39) and inten ogatories (25) that Complaint Counsel served in the five months prior 

to the close offact discove1y . Microsoft notes that, dming the meet-and-confer 

Com laint Counsel su ested that it Ini ht seek additional de ositions of 

and that the three nained executives have previously 

given testunony m mvesbgabona eai1ngs, in depositions, and at the preliminaiy injunction 

hearing in the district comi. Opposition, Ex. C, Declaration of Kieran Gostin ,r,r 4, 11 , 14, 15, 19. 

For the foregoing reasons, the discove1y sought by Complaint Counsel will be limited. 16 C.F.R. 

§ 3.3 l(c)(2)(i), (iii) (providing that requested discove1y shall be limited when it is "unreasonably 

cumulative or duplicative," or the "burden and expense of the proposed discove1y ... outweigh 

its likely benefit"). 
 

 

 

 

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Accordingly, the Motion is GRANTED in part, and it is hereby ORDERED that 

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, with the 

limitations set forth below: 

1. Complaint Counsel shall serve no more than six requests for production on each 

Respondent; 

2. Complaint Counsel shall serve no more than six interrogatories on Microsoft and 

three interrogatories on Activision; 

3. Complaint Counsel shall serve no more than one notice for a 3.33(c)(1) corporate 

deposition on each Respondent; 

4. Any documents or testimony sought by Complaint Counsel shall not be duplicative or 

cumulative of documents or testimony previously provided; 

5. The deadline for completing the fact discovery allowed herein shall be eight weeks 

from the date of this Order. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: October 26, 2023 
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EXHIBIT J
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 35 of 62 * -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. 

Docket No. 9412 

COMPLAINT COUNSEL’S MOTION TO EXTEND FACT DISCOVERY TO ALLOW 

DISCOVERY REGARDING RESPONDENTS’ AGREEMENTS WITH UBISOFT 

ENTERTAINMENT SA AND SONY INTERACTIVE ENTERTAINMENT LLC AND 

REQUEST FOR EXPEDITED RULING 

Complaint Counsel respectfully moves the Court to extend fact discovery in this matter 

for the limited purpose of allowing discovery regarding agreements that Respondents executed 

months after the close of fact discovery with third parties Ubisoft Entertainment SA (“Ubisoft”) 

and Sony Interactive Entertainment LLC (“Sony”). Fact discovery in this matter closed on April 

7, 2023. Respondents executed the Sony and Ubisoft agreements1

 on July 15, 2023, and August 

21, 2023, respectively. According to Respondents, these agreements are procompetitive and 

remedy the anticompetitive effects of the proposed acquisition of Activision Blizzard, Inc. by 

1

 The Ubisoft agreement consists of several complex, interrelated agreements. 

1 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 36 of 62 * -PUBLIC 

Microsoft Corp. (the “Proposed Transaction”). Microsoft in fact told the United Kingdom’s 

Competition & Markets Authority (“UK CMA”) that the Ubisoft agreement rendered the 

Proposed Transaction a “substantially different transaction.”2 Complaint Counsel has had no 

opportunity to conduct discovery regarding the Ubisoft agreement or the execution of the Sony 

agreement. 

As further explained in the attached Memorandum, good cause exists for granting 

discovery on the agreements. These agreements require scrutiny so that this Court has a complete 

picture of the facts when it decides this matter. 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 regarding the Commission’s appeal 

of the district court decision denying preliminary relief. Allowing the requested discovery will 

not unfairly prejudice Respondents. Denying discovery of these agreements will, however, 

unfairly prejudice Complaint Counsel and undermine the Court’s ability to adjudicate this 

matter. 

The Court previously granted Complaint Counsel’s and Respondents’ joint request to 

extend the deadline for all parties’ final exhibit lists by one week. See Order, In re Microsoft 

Corp. & Activision Blizzard, Inc., No. 9412 (F.T.C. May 12, 2023). Complaint Counsel has 

received no other timing extensions in this matter. 

Complaint Counsel respectfully requests expedited briefing and disposition of this 

Motion. This Court has previously recognized that, “[p]ursuant to FTC Rule 3.22(d), [it] may 

shorten the time within which a response is due.” In re La. Real Est. Appraisers Bd., No. 9374, 

2

 B. Smith, Microsoft And Activision Blizzard Restructure Proposed Acquisition and Notify Restructured 

Transaction to the UK’s Competition and Markets Authority (Aug. 21, 2023), available at 

https://blogs microsoft.com/on-the-issues/2023/08/21/microsoft-activision-restructure-acquisition/. 

2 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 37 of 62 * -PUBLIC 

2017 WL 3277253 (F.T.C. July 20, 2017); see also Email from D. Gross to A. Bohanon, et al., In 

re Microsoft Corp. & Activision Blizzard, Inc., No. 9412 (F.T.C. June 27, 2023) (Chambers 

Order shortening time to respond). 

A proposed order is attached. 

Dated: October 10, 2023 Respectfully submitted, 

s/ James H. Weingarten 

James H. Weingarten 

Maria Cirincione 

Ethan Gurwitz 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-3570 

Email: jweingarten@ftc.gov 

Counsel Supporting the Complaint 

3 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 38 of 62 * -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. 

Docket No. 9412 

[PROPOSED] ORDER 

Upon consideration of Complaint Counsel’s Motion to Extend Fact Discovery to Allow 

Discovery Regarding Respondents’ Agreements with Ubisoft Entertainment SA and Sony 

Interactive Entertainment LLC and Request for Expedited Ruling: 

IT IS HEREBY ORDERED that Complaint Counsel’s motion is GRANTED. 

IT IS FURTHER ORDERED that 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 August 21, 

2023 agreements by and among Ubisoft Entertainment SA, Microsoft Corp., and Activision 

1 
 

 

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Blizzard, Inc. and the July 15, 2023, agreement between Microsoft Corp. and Sony Interactive 

Entertainment LLC. 

IT IS FURTHER ORDERED that the following deadlines and limits shall apply to the 

discovery authorized herein: 

1. Complaint Counsel shall serve no more than ten requests for production on each 

Respondent; 

2. Complaint Counsel shall serve no more than ten interrogatories on Microsoft 

Corp. and five interrogatories on Activision Blizzard, Inc.; 

3. Following service of discovery, recipients shall meet and confer within two days, 

serve responses and objections within seven days, and complete document production within 21 

days; 

4. The deadline for completing fact discovery shall be eight weeks from the date of 

the entry of this Order. 

SO ORDERED. 

Dated: _________ ____________________ 

D. Michael Chappell 

Chief Administrative Law Judge 

2 
 

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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 

MEMORANDUM IN SUPPORT OF COMPLAINT COUNSEL’S MOTION TO EXTEND 

FACT DISCOVERY TO ALLOW DISCOVERY REGARDING RESPONDENTS’ 

AGREEMENTS WITH UBISOFT ENTERTAINMENT SA AND SONY INTERACTIVE 

ENTERTAINMENT LLC AND REQUEST FOR EXPEDITED BRIEFING 

Months after fact discovery closed in this matter in April 2023, Respondents executed 

agreements with French videogame publisher Ubisoft Entertainment SA (“Ubisoft”) and Sony 

Interactive Entertainment LLC (“Sony”) that will impact American consumers and that 

Respondents assert are procompetitive and remedy the alleged anticompetitive effects of the 

proposed acquisition of Respondent Activision Blizzard, Inc. (“Activision”) by Respondent 

Microsoft Corp. (“Microsoft”) (the “Proposed Transaction”). Microsoft’s July 15, 2023, 

agreement with Sony (the “Sony Agreement”) purports to provide Sony with rights to certain 

1 
 

 

 

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Activision content.3 The August 21, 2023, set of agreements by and among Microsoft, 

Activision, and Ubisoft (collectively, the “Ubisoft Agreement”) purport to transfer to Ubisoft the 

rights to stream Activision content over the cloud—including to United States consumers—if the 

Proposed Transaction closes. Respondent Microsoft has publicly stated that because of the 

Ubisoft Agreement, “its proposed acquisition of Activision Blizzard presents a substantially 

different transaction under UK law than the transaction Microsoft submitted for . . . 

consideration in 2022” and that Complaint Counsel is challenging here.4

 The United Kingdom 

Competition & Markets Authority (“UK CMA”) determined that the Ubisoft Agreement is so 

significant that it required Respondents to start an entirely separate merger notification and 

review process.5 

Complaint Counsel has had no opportunity to conduct discovery regarding the Ubisoft 

Agreement or the execution of the Sony Agreement. In fact, Complaint Counsel first learned 

about the Ubisoft Agreement after Respondents announced its execution and submission to the 

UK CMA. Complaint Counsel is entitled to take—and this Court ought to have the benefit of— 

discovery of Respondents’ agreements with Ubisoft and Sony. 

PROCEDURAL BACKGROUND 

The Complaint in this matter alleges that the Proposed Transaction will give Microsoft 

the ability and incentive to fully or partially foreclose competitors from Activision’s uniquely 

valuable video game content. Compl. ¶ 96-119. As a result, the Proposed Transaction may 

3 See, e.g., Phil Spencer (Xbox CEO), X, (July 16, 2023), https://twitter.com/XboxP3/status/1680578783718383616. 4

 Brad Smith, Microsoft and Activision Blizzard Restructure Proposed Acquisition and Notify Restructured 

Transaction to the UK’s Competition and Markets Authority, MICROSOFT, (Aug. 21, 2023), 

https://blogs microsoft.com/on-the-issues/2023/08/21/microsoft-activision-restructure-acquisition/ (emphasis 

added); see also Brad Smith (Microsoft Pres.), X, (Aug. 22, 2023), 

https://twitter.com/BradSmi/status/1693866142702653802. 5 See UK CMA, Microsoft / Activision Blizzard (Ex-cloud Streaming Rights) Merger Inquiry, (Aug. 22, 2023) 

https://www.gov.uk/cma-cases/microsoft-slash-activision-blizzard-ex-cloud-streaming-rights-merger-inquiry. 

2 
 

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substantially lessen competition in at least one of the following markets: a relatively mature 

market for high-performance video game consoles (or in the alternative, a broader video game 

console market); a market for video game content library subscription services in which 

consumers subscribe to a service offering access to a library of video games; and a relatively 

nascent market in which consumers stream video games over the cloud. Compl. ¶¶ 62; 118-19. 

Pursuant to the Court’s Case Management and Scheduling Order, fact discovery in this 

case closed on April 7, 2023. See Scheduling Order at 2. 

On April 26, 2023, the UK CMA prohibited Respondents from consummating the 

Proposed Transaction based on finding it may be expected to substantially lessen competition in 

the market for cloud gaming services.6 

On June 12, 2023, the Commission filed an action in federal district court to preliminarily 

enjoin the Proposed Transaction after Respondents refused to confirm that they would abide by 

the UK CMA’s orders barring the Proposed Transaction. See Compl. at 2-3 (ECF No. 1), FTC v. 

Microsoft Corp., No. 3:23-cv-2880 (N.D. Cal. June 12, 2023). After a five-day evidentiary 

hearing, the district court denied the FTC’s request for a preliminary injunction. See FTC v. 

Microsoft Corp., No. 3:23-cv-2880, 2023 WL 4443412 (N.D. Cal. July 10, 2023). The 

Commission appealed, and oral argument before the U.S. Court of Appeals for the Ninth Circuit 

is scheduled for December 6, 2023. 

On July 15, 2023, Microsoft and Sony executed the Sony Agreement. 

6

 UK CMA, ANTICIPATED ACQUISITION BY MICROSOFT OF ACTIVISION BLIZZARD, INC. FINAL REPORT (Apr. 26, 

2023), 

https://assets.publishing.service.gov.uk/media/644939aa529eda000c3b0525/Microsoft_Activision_Final_Report_.pd 

f. 

3 
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On July 18, 2023, Respondents agreed to a negotiated extension of the time to 

consummate the Proposed Transaction from July 18 to October 18, 2023.7 

On July 20, 2023, on Respondents’ motion, the FTC Secretary withdrew this matter from 

adjudication pursuant to 16 C.F.R. § 3.26(c). See Order, In re Microsoft Corp. & Activision 

Blizzard, Inc., No. 9412 (July 20, 2023). 

On August 21, 2023, Respondents and Ubisoft executed the Ubisoft Agreement. 

On September 26, 2023, the Commission voted to return this matter to adjudication. See 

Order Returning Matter to Adjudication, In re Microsoft Corp. & Activision Blizzard, Inc., No. 

9412 (Sept. 26, 2023). 

FACTUAL BACKGROUND 

A. The Ubisoft Agreement 

The Ubisoft Agreement is comprised of three separate contracts executed in August 2023 

that together purport to transfer to Ubisoft the rights to sell cloud-streamed versions of Activision 

games in the United States, the United Kingdom, and various other countries outside of the 

European Economic Area if the Proposed Transaction is consummated. 

Complaint Counsel first learned of the Ubisoft Agreement after Respondents publicly 

announced its execution and submission to the UK CMA as part of an effort to remedy the UK 

CMA’s finding that the Proposed Transaction may be expected to result in a substantial lessening 

of competition in the market for the supply of cloud gaming services in the United Kingdom. On 

August 28, after multiple requests, Respondents provided the Ubisoft Agreement to Complaint 

Counsel. The next day, at Complaint Counsel’s request, Respondents’ counsel provided a brief 

overview of the terms of the agreements via videoconference. 

7 See Activision Blizzard, Inc., Current Report at 2 (Form 8-K) (July 19, 2023). 

4 
 

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Complaint Counsel has had no opportunity for discovery regarding the Ubisoft 

Agreement. Before this matter was returned to adjudication, Complaint Counsel asked 

Respondents’ counsel for any business documents about the Ubisoft Agreement, but 

Respondents never responded to this request. Respondents also declined to provide Complaint 

Counsel with copies of information about the Ubisoft Agreement they provided to the UK CMA. 

B. The Sony Agreement 

On July 15, 2023, Microsoft executed an agreement with Sony purporting to offer Call of 

Duty on PlayStation and PlayStation Plus (Sony’s video game subscription service) after the 

close of the Proposed Transaction. { } an offer Microsoft 

made to Sony in December 2022, on which Complaint Counsel diligently sought timely 

discovery. Sony’s CEO testified that the December offer was { 

} After the district court denied preliminary 

relief, and seven months after the close of fact discovery in this matter, Sony nevertheless signed 

the agreement. Complaint Counsel has had no opportunity to take discovery regarding Sony’s 

decision to sign the agreement with Microsoft. 

ARGUMENT 

FTC Rule 3.21(c)(2) permits this Court to extend discovery for good cause, which exists 

when a scheduling order deadline “cannot be met despite the diligence of the party seeking the 

extension.” In re Traffic Jam Events, No. 9395, 2021 WL 3465709, at *1 (F.T.C. July 23, 2021) 

(quoting In re Gemtronics, Inc., No. 9330, 2009 WL 725988, at *1 (F.T.C. Feb. 13, 2009)). 

8

 Exhibit A, Excerpt of PX3378 at 016-20 (Ryan Hr’g Testimony at 59:10-70:23). 

5 
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Pursuant to Rule 3.21(c)(2), the Court shall consider “any extensions already granted, the length 

of the proceedings to date, the complexity of the issues, and the need to conclude the evidentiary 

hearing and render an initial decision in a timely manner.” This Court also has granted requests 

for additional discovery when the “public interest and the search for the truth are served” by such 

discovery. In re LabMD, Inc., No. 9357, 2014 WL 7183808, at *4 (F.T.C. Dec. 8, 2014). 

Complaint Counsel has good cause for requesting the ability to take discovery of the Ubisoft and 

Sony Agreements, and all of the factors set forth in Rule 3.21(c)(2) support this request. 

First, good cause exists to grant additional time for discovery of the Ubisoft and Sony 

Agreements because the agreements were not executed until months after the close of fact 

discovery. While Complaint Counsel had taken discovery of Microsoft’s offer to Sony and 

Sony’s { } to that offer, Complaint Counsel had no opportunity to take 

discovery about the circumstances surrounding Sony’s decision in July 2023 to accept the offer. 

Moreover, Complaint Counsel had no notice of the Ubisoft Agreement until after it was executed 

in August 2023. Respondents controlled the timing of this agreement, waiting to negotiate and 

execute the Ubisoft Agreement more than eighteen months after announcing the Proposed 

Transaction, seven months after the Commission issued its Administrative Complaint, and over 

three months after the UK CMA concluded that the Proposed Transaction may be expected to 

substantially lessen competition in the cloud streaming market. 

Second, the agreements and their possible effects on American consumers in the relevant 

markets present complex questions of fact that require additional discovery. See In re Pom 

Wonderful LLC & Roll Glob. LLC., No. 9344, 2011 WL 1429882, at *2 (F.T.C. Apr. 5, 2011) 

(granting an extension in part due to the “[t]he complexity of the issues in this case”). For 

example: 

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I 

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 The Ubisoft Agreement implicates different payment schemes, including { 

} Complaint Counsel is entitled to discovery of, for example, how these payment schemes 

were determined, whether Ubisoft can profitably offer streamed Activision games based on these 

schemes, and whether other market participants can profitably purchase streamed Activision 

games based on this pricing scheme. 

 Discovery also is required to test Respondents’ assertions that the Ubisoft Agreement 

is procompetitive. For example, under the current pricing terms, Ubisoft must pay Microsoft { 

} This raises doubts about whether it could ever be profitable for Ubisoft to 

license these games to multi-game content subscription service providers that offer streaming. If 

not, the effect may be to foreclose new Activision games from being offered on those services. 

This potential anticompetitive effect, among others, demonstrates why discovery is needed from 

Respondents and Ubisoft, as well as from the multi-game content subscription services providing 

cloud streaming today, including Amazon and Sony. 

 Although Complaint Counsel had no opportunity to take discovery of the Ubisoft 

Agreement and no notice of any potential deal with Respondents, Ubisoft’s ability, incentives, 

and plans to market cloud streaming rights for Activision games are now highly relevant. 

 Relevant discovery also encompasses Respondents’ negotiation to extend the deadline 

for completing the Proposed Transaction from July to October 2023, which provided time for 

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negotiating and executing the Ubisoft Agreement. The Ubisoft Agreement purports to offer 

Activision content broadly across cloud-gaming services, which is in direct conflict with 

Respondents’ arguments that Activision content cannot be supported by cloud streaming. 

Third, all of the other Rule 3.21(c)(2) factors support extending discovery. The 

proceedings to date have progressed efficiently, with the only pause arising from Respondents’ 

motion to withdraw this matter from adjudication. Permitting discovery of the agreements 

presents no risk of delaying the evidentiary hearing. The evidentiary hearing is not set to begin 

until twenty-one days after the Ninth Circuit rules on the Commission’s appeal. Complaint 

Counsel’s request for eight weeks to take the requested discovery will not risk delaying the 

merits hearing or issuance of the Court’s decision. 

Fourth, the “public interest and search for the truth” require discovery on the agreements. 

See LabMD, Inc., 2014 WL 7183808, at *4. These agreements purport to affect millions of 

gamers in the United States. The issue of whether the agreements are sufficient to replace the 

competition lost because of the Proposed Transaction requires additional discovery before it can 

be resolved. Neither Complaint Counsel nor this Court can simply take Respondents’ untested 

word on the alleged procompetitive benefits of the agreements. As the Supreme Court has made 

clear, “all doubts as to the remedy are to be resolved in [the Government’s] favor.” United States 

v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 334 (1961); see also United States v. Aetna 

Inc., 240 F. Supp. 3d 1, 78 (D.D.C. 2017) (“Courts appropriately guard their ability to ascertain 

the actual facts at issue, rather than allow a party to thwart judicial review through its own 

machinations.”). This Court is entitled to ordinary course information and sworn testimony about 

these agreements and their effects. 

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Finally, Respondents cannot plausibly claim any unfair prejudice arising from permitting 

discovery of agreements that they executed long after the close of fact discovery and that they 

are publicly touting as having changed the antitrust analysis of the Proposed Transaction. In fact, 

the lack of discovery unfairly prejudices Complaint Counsel’s ability to analyze the effects of 

these agreements on American consumers. 

CONCLUSION 

For the foregoing reasons, Complaint Counsel respectfully moves the Court to extend the 

fact discovery deadline to permit discovery relevant to the Ubisoft and Sony Agreements. 

Pursuant to FTC Rule 3.22(d), Complaint Counsel respectfully requests expedited briefing and 

disposition of this Motion. 

Dated: October 10, 2023 Respectfully submitted, 

s/ James H. Weingarten 

James H. Weingarten 

Maria Cirincione 

Ethan Gurwitz 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-3570 

Email: jweingarten@ftc.gov 

Counsel Supporting the Complaint 

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EXHIBIT A 

CONFIDENTIAL – REDACTED IN ENTIRETY 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 50 of 62 * -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. 

Docket No. 9412 

STATEMENT REGARDING MEET AND CONFER 

Pursuant to the January 4 Scheduling Order and the May 12 Order Granting Joint Motion 

for First Revised Scheduling Order, Complaint Counsel submit this statement in support of their 

Motion to Extend Fact Discovery to Allow Discovery Regarding Respondents’ Agreements with 

Ubisoft Entertainment SA and Sony Interactive Entertainment LLC and Request for Expedited 

Ruling. Complaint Counsel has conferred with Respondents in good faith and attempted to come 

to an agreement on a discovery proposal. On September 27, 2023, Complaint Counsel requested 

Respondents’ position on a proposal to extend fact discovery. Respondents waited five days to 

acknowledge the request and submitted a counterproposal to Complaint Counsel on October 5. 

On October 6, Respondents confirmed by email their unwillingness to agree to a discovery 

1 
 

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proposal that includes individual depositions and interrogatories. Discussions continued via 

email on October 6 and 9. Complaint Counsel and Respondents reached an impasse regarding 

the appropriate scope of discovery regarding the agreements. 

Dated: October 10, 2023 Respectfully submitted, 

s/ James H. Weingarten 

James H. Weingarten 

Maria Cirincione 

Ethan Gurwitz 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-3570 

Email: jweingarten@ftc.gov 

Counsel Supporting the Complaint 

2 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 52 of 62 * -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. 

Docket No. 9412 

DECLARATION OF MARIA CIRINCIONE IN SUPPORT OF COMPLAINT 

COUNSEL’S MOTION TO EXTEND FACT DISCOVERY TO ALLOW DISCOVERY 

REGARDING RESPONDENTS’ AGREEMENTS WITH UBISOFT ENTERTAINMENT 

SA AND SONY INTERACTIVE ENTERTAINMENT LLC AND REQUEST FOR 

EXPEDITED BRIEFING 

My name is Maria Cirincione. I am over eighteen years of age, and I am a citizen of the 

United States. I have personal knowledge of the information contained herein. 

1. I am serving as Complaint Counsel in the above-captioned matter. 

2. I respectfully submit this declaration to provide certain documents that are 

referred to in Complaint Counsel’s Motion to Extend Fact Discovery to Allow Discovery 

Regarding Respondents’ Agreements with Ubisoft Entertainment SA and Sony Interactive 

Entertainment LLC and Request for Expedited Ruling. 

1 
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3. Submitted herewith are trne and coITect copies of the following: 

Exhibit Description 

A Exce1pt of PX3378 at 016-20 (Ryan Hr'g Testimony at 59:10-70:23). 

I declare under penalty ofpe1jmy under the laws ofthe United States ofAmerica that the 

foregoing is hue and coITect. 

Dated: October 10, 2023 Respectfully submitted, 

s/ Maria Cirincione 

2 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 54 of 62 * -PUBLIC 

CERTIFICATE OF SERVICE 

I hereby certify that on October 10, 2023, 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 

Andrew D. Kabbes 

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 

andrew.kabbes@skadden.com 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 55 of 62 * -PUBLIC 

megan.granger@weil.com bradley.pierson@skadden.com 

Counsel for Microsoft Corporation Counsel for Activision Blizzard, Inc. 

By: s/ James H. Weingarten 

James H. Weingarten 

Counsel Supporting the Complaint 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 56 of 62 * -PUBLIC 

EXHIBIT L

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

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EXHIBIT M

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 58 of 62 * -PUBLIC 

EXHIBIT N

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/21/2023 OSCAR NO 609225 | PAGE Page 59 of 62 * -PUBLIC 

EXHIBIT O

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

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EXHIBIT P

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

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EXHIBIT Q

[This entire exhibit is Confidential pursuant to the 

Protective Order] 
 

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EXHIBIT R

[This entire exhibit is Confidential pursuant to the 

Protective Order]