Court Allows Gamers’ Amended Suit To Block Microsoft, Activision Deal

While we’ve talked a great deal now about Microsoft’s proposed acquisition of Activision Blizzard, most of the focus has been on how three major regulatory bodies are handling approving, or not, the purchase. But those regulatory bodies are not the only ones challenging the purchase. A small group of gamers filed their own private suit to block the acquisition, arguing that they would be negatively impacted if it were approved. That was earlier this year and the judge dismissed the suit, stating that the plaintiffs had not provided enough specific evidence of harm in its complaint to allow the suit to move forward. However, the court also provided the plaintiffs with the ability to re-file the suit and told them what the court would be looking for in an amended complaint.
The gamers did submit a new complaint and, while the judge refused their request to issue a preliminary injunction pausing the purchase, is allowing the suit to move forward.

Regarding those amended claims, District Court Judge Jacqueline Scott Corley said in a Friday ruling that, while it was too early to fully rule on the merits of the case, the plaintiffs “plausibly attest to their loyalty to the Call of Duty franchise and thus that each will purchase a different console or subscription service, or pay an inflated price, if needed to continue to play Call of Duty, especially if needed to play with their friends.” That’s a turnaround from the initial March dismissal, where Corley wrote that the plaintiffs didn’t “plausibly allege” that the merger “creates a reasonable probability of anticompetitive effects in any relevant market.”
Even if those “plausible” claims are eventually proved at trial, though, Corley said the plaintiffs hadn’t shown any evidence of the “immediate, irreparable harm” that would be needed to justify a preliminary injunction at this point. On the contrary, Corley writes that, immediately following any merger, there’s no evidence that Microsoft “can do anything to make these [existing PlayStation] Call of Duty versions currently owned by Plaintiffs somehow stop working, let alone that it would do so.”

And, so, these folks are going to get their day in court. Antitrust claims are notoriously hard to make stick in the United States generally, never mind suits brought by private individuals like this. But they will get their shot at litigation and, given all of the surrounding drama from the regulators, you can’t count the suit out.
Still, all of this doesn’t really matter all that much until the FTC’s lawsuit to block the deal plays out anyway.

Any effects of the merger will also have to wait until the resolution of the current Federal Trade Commission administrative action seeking to stop the deal, not to mention UK regulatory efforts to do the same. If and when the deal finally survives those hurdles, Corley writes that “the Court will be able to hold a trial on the merits and finally decide the issue before Plaintiffs suffer any irreparable harm.”

With all of the legal action surrounding this purchase, Microsoft has to at least feel like the dog that finally caught the car, if not dog that knocked over a hornet’s nest and immediately found its feet stuck in cement, unable to avoid getting stung from every direction.

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