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Friday, June 14, 2024

The gamer lawsuit against the Microsoft-Activision deal suffers another blow

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In December 2022, a group of angry gamers filed a lawsuit in opposition to Microsoft’s planned acquisition of Activision-Blizzard, alleging that it was likely Microsoft would use ownership of the company (and particularly the Call of Duty series) as a cudgel against Sony in its ongoing battle for console supremacy. In March 2023, the case was tossed: The judge ruled that it’s possible Microsoft could make Activision Blizzard games exclusive to its consoles, but that the plaintiffs had not “alleged facts that make it plausible Microsoft is reasonably likely to do so.” 

That wasn’t the end of it, though. The plaintiffs were given 20 days to refile the action with proper supporting evidence, and they did. They also filed a request for a preliminary injunction blocking the merger until the lawsuit is decided.

The judge in the case has now nixed that request, declaring that the plaintiffs have not shown any likelihood that they will suffer “immediate irreparable harm” if the deal is allowed to proceed.

“First, Plaintiffs currently play Call of Duty on Xbox, on Windows PC, or on PlayStation,” the ruling (via Reuters) states. “There is nothing in the record that suggests upon the merger Microsoft can do anything to make these Call of Duty versions currently owned by Plaintiffs somehow stop working, let alone that it would do so. Thus, the day after the merger they can play exactly the same way they played with their friends before the merger.”

The judge added that it’s not very likely Microsoft will bash out a new, Xbox-exclusive Call of Duty before the full lawsuit can be decided—and that if it announced plans for an Xbox-exclusive Call of Duty in violation of its written commitments not to, a preliminary injunction could be put into place at that point.

The ruling goes on to cite various precedents to demonstrate when a preliminary injunction is and is not appropriate, but the bottom line is that any potential harm the plaintiffs might suffer as a result of Microsoft’s acquisition of Activision-Blizzard “will not occur between now and a trial on the merits.” And so, as they say in videogames, request denied.

To be clear, this decision is strictly relating to the request for a preliminary injunction against the merger: The lawsuit seeking to stop the deal outright is still pending. But it doesn’t strike me as a particularly good sign for its likelihood of success, not that I was ever all that confident that it would be successful in the first place. It is possible that the acquisition will ultimately be halted—UK regulators voted to block the deal in April—but it’s since been approved by the European Union and China. In the US, the FTC is still chewing on it.

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