Wednesday, December 14, 2022

Microsoft's lead counsel in FTC case over Activision Blizzard acquisition successfully argued for execution of Oklahoma Bomber McVeigh

On Thursday, the Federal Trade Commission (FTC) filed its complaint over Microsoft's acquisition of Activision Blizzard King, though the alternative would have been a consent decree. Today, Microsoft's counsel gave notice of appearance (PDF): four lawyers from the DC head office of Wilkinson Stekloff.

Microsoft's lead counsel is the firm's founder, Beth Wilkinson, who has an impressive background in litigation, including high-stakes multi-billion dollar cases as well as criminal cases. As a trial lawyer at the Department of Justice, she represented the United States against Oklahoma bombers Timothy McVeigh and Terry Nichols.

In June 1997, the Los Angeles Times described how Mrs. Wilkinson convinced the jury in the government's closing argument that the death sentence was appropriate in that particular case:

Prosecutor Beth Wilkinson turned toward McVeigh and in a voice cracking but loud enough for the jury to hear said: "Look into the eyes of a coward and tell him you will have courage. . . . Tell him he is no patriot. He is a traitor and deserves to die."

The jury agreed, and a few years later, McVeigh was executed.

For her work on that domestic terrorism case, Mrs. Wilkinson was awarded the DOJ's Exceptional Service Award for a second time (no one before her had received it twice).

A profile on the website of her alma mater--Princeton-- points out, however, that Mrs. Wilkinson also "served as Co-Chair of the Committee to Reform the Death Penalty, 'a nonpartisan group that worked to initiate reforms to the death penalty around the country.'"

There are three more Wilkinson Stekloff partners appearing on Microsoft's behalf: Rakesh Kilaru, an experienced antitrust litigator; Kieran Gostin, a former DOJ trial counsel; and Grace L. Hill, who like Mrs. Wilkinson once practiced criminal law but has more recently handled civil litigation, such as "preparing a tech company’s C-suite executives to testify in an FTC investigation."

Microsoft's filings with the UK Competition & Market Authority (CMA) bear the logo of one of America's largest and most famous firms, Weil Gotshal & Manges.

The FTC's primary challenge, however, is not Microsoft's legal team, no matter how impressive its background may be. It's that the complaint fails to convince observers. Moreover, Microsoft is prepared to alleviate any concerns over vertical foreclosure, even with respect to multi-game subscription services. Sony is the undisputed market leader, and Microsoft President Brad Smith noted that "the Administrative Law Judge is going to have to decide whether going from 59 to 60 [Xbox-exclusive games] is such a danger to competition that he should stop this from moving forward," considering that there are 286 PlayStation-exclusive games--and that Microsoft is actually prepared to extend a 10-year license to Sony.