President Trump’s antitrust cops at the Federal Trade Commission just received a loud warning about attempts to block any future technology mergers.
It came as the FTC on Wednesday lost a roughly three-year-long attempt to undo Microsoft’s (MSFT) $69 billion acquisition of gaming giant Activision Blizzard on the grounds that the deal violated antitrust law.
A three-judge panel for the Ninth Circuit Court of Appeals made it clear that regulators need to show evidence, and not solely a theory, that a tie-up will cause real harm to competition.
They ruled that the FTC failed to show that Microsoft would withhold from rivals Activision’s widely popular video game “Call of Duty,” nor that the tie-up would reduce competition in cloud gaming.
“Given the FTC’s failure to make an adequate showing as to its likelihood of success on the merits as to any of its theories, the district court properly denied the FTC’s motion for a preliminary injunction on that basis,” Circuit Judge Daniel P. Collins wrote in a 40-page decision.
The unanimous decision pushes back on a wide antitrust enforcement net cast by the Trump and Biden administrations to rein in Big Tech, even as federal prosecutors continue antitrust litigation against Google (GOOG, GOOGL), Apple (APPL), and Meta (META).
The government has been successful in arguing that Google illegally monopolized the general search engine market and used illegal tactics to block competition in markets where online advertisements are bought and sold.
The Trump administration is currently asking judges to approve a breakup of Google’s empire to remedy the monopoly behavior.
Microsoft closed on its deal to acquire Activision, the largest game publisher in North America, in October 2023 after a California federal district court declined to grant the FTC a temporary injunction to halt the deal.
In addition to the hit “Call of Duty” franchise, the company also offers “World of Warcraft,” “Diablo,” and “Overwatch.” The firm also owns mobile game publisher King, the company behind “Candy Crush.”
Adding those franchises to Microsoft’s existing titles, including “Halo” and “Forza,” catapulted Microsoft past Nintendo (NTDOY) to make the company the second-largest home console maker by revenue behind Sony (SONY).
It also put Microsoft behind Tencent and Sony as the third-largest gaming company by global revenue.
The FTC re-upped a challenge to the merger in a lawsuit filed in the agency’s in-house court, despite the fact that the appellate court denied its request for an injunction to pause the merger.
