Apple makes debatable claims concerning foreign investigations in answer to Brazil's antitrust authority CADE: investigation of Mercado Livre, Clique complaints

Last month it became known that Brazil's competition authority--Conselho Administrativo de Defesa Econômica (CADE), which translates as Administrative Council for Economic Defense--launched an antitrust inquiry into Apple's App Store terms and practices further to complaints by Latin American e-commerce companies Mercado Livre (in Spanish: Mercado Libre) and Clique. Brazil is becoming an increasingly important jurisdiction for patent and competition cases. Yesterday Apple filed its answers (PDF) to certain questions raised by CADE in a January 12 letter.

CADE's question 2(b) was about the state of affairs in App Store antitrust investigations in certain other jurisdictions. CADE had specifically asked about App Store investigations in the EU (agency: European Commission), UK (CMA), the Netherlands (ACM), Germany (Federal Cartel Office), Australia (ACCC), South Korea (KFTC), Japan (JFTC), India (CCI), and Indonesia (ICC).

Apple's response is somewhat defensible, but not exceedingly forthcoming, with respect to certain jurisdictions (UK, South Korea, Australia, and Germany), as I'll explain further below. Here's my translation, with [comments in brackets]:

3. The case before the European Commission and the related proceedings are confidential in accordance with applicable procedural rules. The European Commission launched a formal investigation into the App Store in June 2020. In April 2021, a Statement of Objections, with a focus on effects on the market for digital music distribution, came down. A Statement of Objections is not a final decision by the Commission, but rather a preliminary assessment of an alleged antitrust violation. The case is still pending.

   [COMMENT: The Commission issued the SO right before the Epic Games v. Apple trial in the Northern District of California. Two weeks ago, Spotify--the main complainant--and other parties wrote an open letter to EU antitrust chief Margrethe Vestager, urging her to move forward with a formal decision. Some members of the EU antitrust community believe the Commission may not be interested in taking the next steps as the EU's Digital Markets Act (DMA), which was adopted last year, is in the process of being implemented and may solve Spotify's and other music streaming services' problems next year (it won't make an actual impact on the market before). I can see why some would like the Commission to act now, but can also understand what is suspected to be the Commission's perspective, and haven't formed a definitive opinion.]

4. In India, the Competition Commission of India ("CCI") launched an investigation into the App Store in September 2021 further to representations of an organization that represents the interests of consumers and, subsequently, representions by developers. The investigation is in progress.

   [COMMENT: In India, Apple's market share is tiny--just about 3%. The focus of competition enforcers is, therefore, on Android. Google has now started to make changes, though they appear to fall short of what is actually required.]

5. In Japan, no inquiry into the App Store is currently being carried out by the Japan Fair Trade Commission ("JFTC"). The JFTC closed an App Store investigation in 2021 when Apple proposed the implementation of measures that eliminated the agency's concerns.

   [COMMENT: The Japanese settlement was narrowly focused on "reader" apps. The JFTC should do more.]

6. In the Netherlands, the Authority for Competition [WRONG: it's Consumers] and Markets ("ACM") put forward a decision in December 2021, concluding that Apple had supposedly abused a dominant position with respect to the App Store's treatment of dating apps (e.g., Tinder), and imposed a measure ("order") determining that Apple had to make certain adjustments. Apple in turn appealed the decision before the ACM itself and also obtained a preliminary judicial decision that suspended the effects of the ACM's decision in part. The proceedings concerning the recourse before he ACM are still ongoing.

   [COMMENT: What Apple is not saying here is that the preliminary injunction it obtained in court bars the ACM not only from enforcing but even from publishing a key part of the decision. The public part relates to the permission of alternative in-app payment systems. The part that the ACM is not able to talk about, but which became known nonetheless, prevents Apple from imposing excessive charges on app developers using such alternative payment systems.]

7. In March 2021, the Competition and Markets Authority of the United Kingdom ("CMA") opened an investigation into the App Store. The investigation is still in progress.

   [COMMENT: Apple's answer narrowly refers only to an investigation into the App Store, but the CMA is also conducting a market investigation into Apple's mobile browser engine dictate and its efforts to hamstring third-party cloud gaming services. Apple is appealing the market investigation reference before the UK Competition Appeal Tribunal.]

8. Upon the enactment of a new law in South Korea in 2021, the South Korean Communications Commission ("KCC") launched an investigation in order to ascertain the App Store's compliance with the new law. The investigation is still in progress.

   [Here, again, the question is whether half the truth is a whole lie. In September 2022, the Korea Fair Trade Commission (KFTC) performed a dawn raid on Apple's South Korean headquarters because it effectively charges a 33%--not 30%--App Store commission in South Korea. Apple conveniently omits that fact.]

9. Apple is not aware of any investigations into the App Store that are ongoing in Indonesia, Australia, and Germany.

   [COMMENT: I don't know for sure about Indonesia, though I have seen reports that something is pending there. In Australia, the ACCC performed a market investigation and believes that legislative action is needed. It is investigating Apple over Apple Pay. With respect to Germany, Apple's claim if being unaware of "any" investigations into the App Store is overbroad: There is an investigation by the Bundeskartellamt (Federal Cartel Office) into Apple's app tracking rules. Apple's App Tracking Transparency (ATT) is enforced by Apple being the App Store's gatekeeper through its arbitrary review process for which Apple self-servingly makes the rules. Mercado Livre's and Clique's complaints in Brazil are not just about the app tax but also about the current inability--due to Apple's rules--of such third parties to offer their own app stores, which could also come with different ad tracking rules. What the Federal Cartel Office cannot do is investigate the very same issues that the European Commission is looking into at the same time (Art. 11 para. 6 of EU Regulation 1/2003 lets EU Commission investigations take precedence over investigations by the Member States' national competition authorities). The German ATT case is distinguishable from the EU music streaming case, but it can be reasonably described as an App Store-related investigation and Apple should have disclosed it to Brazil's CADE.]

CADE can reach out to its counterparts in other jurisdictions to find out more, just like Australia's ACCC said today that it is "engaging with overseas regulators" in connection with their reviews of Microsoft's acquisition of Activision Blizzard.

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Australian antitrust authority ACCC publicly states it's 'engaging with overseas regulators' on Microsoft-ActivisionBlizzard while its own investigation remains on hold

News from Down Under:

For the first time in almost five months, the Australian Competition & Consumer Commission (ACCC) has updated the public webpage dedicated to its review of Microsoft's acquisition of Activision Blizzard King (NASDAQ:ATVI). There were only three entries before, which I'll summarize as follows:

• June 20, 2022: start of informal review

• July 11, 2022: closing date for submissions

• September 8, 2022: timeline suspended (in EU antitrust jargon that would be called a "stop the clock")

Now the ACCC has added the following line (click on the image to enlarge or read the text below the image):

02/02/2023   ACCC engaging with overseas regulators. Timeline remains suspended

They're being very forthright. Everyone knows that competition authorities talk a lot to each other when they have similar matters before them, but many antitrust agencies wouldn't inform the public of the fact--not because it's unlawful or anything, but because it could be considered to call into question the independence of their decision-making processes.

Looking at what other jurisdictions have been doing so far with respect to Microsoft-ActivisionBlizzard, there are only two I can really commend at this juncture: Chile, where a survey showed what Call of Duty gamers' priorities are (they're loyal to Sony's PlayStation), and Brazil's CADE, which properly distinguished a competitor's misgivings from what would be harm to the competitive process.

I don't know what the European Commission's Statement of Objections (SO) says, but I can't imagine they've come up with any theory of harm we haven't all heard about before, none of which makes sense. I commented on the fact of the EU SO having issued when MLex (no reason not to trust them) reported. As I mentioned yesterday, Politico has also reported on the SO. And the latest source is Bloomberg:

Microsoft receives a formal list of concerns from the European Commission about its proposed $69 billion takeover of Activision Blizzard, marking an escalation in the regulatory body’s probe of the deal https://t.co/HIAW1O7eH9

— Bloomberg (@business) February 2, 2023

The most interesting one of the many recent developments in this context is, however, that Sony doesn't want to provide documents that the FTC has requested. Sony should do almost literally anything for the FTC. It is indebted to the FTC. And it has a legal duty to cooperate with a discovery request--an obligation that would exist even if Sony had not instigated it all in the first place. On Twitter I put it like this:

First they ask the @FTC to bring a #merger lawsuit. Then they don't want to answer questions.

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Thankless Sony is unwilling to comply with Federal Trade Commission's subpoena over Microsoft-ActivisionBlizzard merger, at least in its original form

This is counterintuitive. One would think that Sony's PlayStation chief Jim Ryan has a Lina Khan poster above his bed because the Federal Trade Commission (FTC) is doing him the favor of acting almost like a wholly-owned subsidiary of Sony Interactive Entertainment with respect to Microsoft's acquisition of Activision Blizzard King (NASDAQ:ATVI). At minimum, one would expect Sony to jump when the FTC asks for documents and testimony in connection with that merger case. Not so:

On Wednesday, Sony filed a motion--which it says the FTC does not oppose--for an extension of time (PDF). Instead of meeting the production date for documents requested by the FTC, which was supposed to be February 10, the PlayStation maker wants to have until February 15 "to move to limit or quash or otherwise respond to the subpoena served on [Sony Interactive Entertainment] by the United States of America Federal Trade Commission."

Let that sink in:

This is the same Sony that has been telling the FTC (and other regulators) that the transaction has to be blocked "because Call of Duty." They're the only vocal complainer. The FTC brought that in-house lawsuit, which is exactly what Sony wanted, and served a subpoena on Sony (which according to the motion happened on January 20). That is possibly the first thing that the FTC has done in this entire context that a Sony subsidiary would not have done.

Instead of hearing the proverbial call of duty and readily handing over all the documents requested by the government agency, Sony is now negotiating the scope of discovery and reserving its right to "move to limit or quash" the FTC's subpoena. That's not being cooperative...

In a way I anticipated the obvious: Sony doesn't like to find itself on the receiving end of discovery requests because its own content-centric business strategy and dealings with game makers would have to be debated in public--the very practices that Sony engages in like no one else and accuses Microsoft of planning to engage in with respect to Call of Duty. Therefore, it came as no surprise that Sony took issue with Microsoft's subpoena. It had a deadline yesterday to move to limit or quash that one, but the FTC sometimes has a delay or one or more days before a document gets uploaded, so I don't know whether Sony and Microsoft worked it out. Anyway, both Sony and Microsoft are private parties, and disagreements between them are one thing, but being uncooperative when a government agency requests material in a case that it brought because of Sony's constant complaining is another.

What I find really puzzling is that Sony not only reserves the right to limit the subpoena but even to "quash" it in its entirety. Sony may refuse to cooperate at all.

Sony can't claim that somebody is dragging it into that merger case because Sony instigated it all and is even playing fast and loose with the truth.

The FTC and other competition enforcers (for example, the European Commission issued a Statement of Objections) can see now that Sony wants to have its cake and eat it. It wants government agencies to do the job of delaying (or, preferably from Sony's perspective, derailing) a transaction--but it doesn't want to make its contribution by putting all relevant facts on the table. Sony may be afraid of some of its own practices giving rise to competition enforcement--and of being exposed as a hypocrite, which is bad enough in its own right.

The FTC may, however, be more concerned now about its own reputation. It just suffered a major defeat as a federal judge declined to extend a temporary restraining order against Meta over its acquisition of Within (I'm waiting for the public version of the order so I can comment more specifically). The FTC's track record under Chair Khan is not looking good. Will the agency ever get tired of losing?

As long as those merger cases (the one in the FTC's in-house court and the one in the Northern District of California) are pending, Sony and others have to expect that some of their strategies and practices will be discussed in public. Nvidia is in talks with Activision Blizzard over the scope of the latter's discovery request. Nvidia is not nearly as aggressive as Sony, but it appears to be opportunistically seeking a license it doesn't have and wouldn't otherwise get.

The FTC's in-house lawsuit has spawned a class-action-style (more action than class) case in the Northern District of California, the district in which the FTC just lost against Meta. Those San Francisco proceedings will be even more public unless the complaint gets dismissed. The class-action lawyers who brought it would like Sony's Jim Ryan, Nintendo's Doug Bowser, and Activision Blizzard's Bobby Kotick to testify (and have subpoenaed those three)--in addition to, of course, Microsoft's leadership. Games Radar picked up this story, too (The console war reaches new heights as random gamers ask Sony and Nintendo CEOs to testify over Microsoft Activision deal). Sony's lawyers may already be preparing the next "motion to limit or quash."

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States, Epic Games et al. v. Google jury trial over app store rules scheduled for November 6--another major Google antitrust trial (first DOJ case) starts on September 12

"Remember, remember, the 5th 6th of November" (and the 12th of September):

• Judge James Donato of the United States District has formally approved a case schedule negotiated between Google and the Google Play Store antitrust plaintiffs (three dozen U.S. states, Epic Games, Match Group, and a consumer class action) and set the In Re Google Play Store Antitrust Litigation (case no. 3:22-cv-2746-JD, N.D. Cal.) jury trial in San Francisco for November 6, 2023.

  This means the trial will be interrupted by the Thanksgiving holiday (November 23), though it is unclear whether the trial will be interrupted for a full week or just a very long weekend.

• As previously reported, Google already has a huge antitrust trial coming up in the last third of this year: on September 12, the United States et al. v. Google trial in the District of Columbia will go ahead.

  That case has already impacted the California app store case because of the information the three dozen state AGs obtained through discovery in the D.C. case.

  Google has moved for summary judgment against the DOJ and the state AGs, who have meanwhile filed their opposition briefs, which are sealed for the time being. When Google filed public redacted versions of its SJ motions, I provided an overview of its theories. I don't expect the whole case to go away, so the September trial is going to happen in one form or another.

  It will be a "trying" final third of the year for Google's legal department as the stakes are extremely high in either one of those antitrust cases. The DOJ and eight states recently filed another Google antitrust complaint (over adtech).

The hearing minutes in which Judge Donato stated his approval of the November 6 trial date are primarily about the continued fight over sanctions that may be imposed on Google for systematically moving sensitive discussions to chats that were then automatically deleted after 24 hours. The governmental and private plaintiffs were able to show some smoking guns. Judge Donato has ordered further productions and would like the parties to "meet and confer about which of the relevant custodians still have their history setting turned to 'off' for any of their chats, and whether Google should now change those default history settings to 'on' for the core set of relevant custodians as the parties agree." It looks like some spoliation-of-evidence sanctions are rather likely, and the question may just be how impactful they will be.

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Nvidia has been subpoenaed by Activision Blizzard in FTC case, hopes to resolve disagreements over scope of discovery until February 13

Yesterday I reported that counsel for Nvidia entered an appearance in the FTC's in-house adjudicative proceeding, and the question was "whether those lawyers are going to try to support the FTC or whether the reason is just a discovery dispute." For now, there are no motions to intervene in accordance with 16 CFR § 3.14, but Nvidia's lawyers filed a motion on Monday that the PDF has made public now (PDF), seeking an extension until February 13 to move to limit or quash a subpoena served on Nvidia by Activision Blizzard on January 20. The motion says that Activision agrees to this extension of time.

Earlier today I reported on subpoenas served on Sony's PlayStation chief Jim Ryan, Nintendo of America CEO Doug Bowser, and Activision Blizzard CEO Bobby Kotick by class-action lawyers suing Microsoft over this deal in the Northern District of California. If Sony wants to bring a motion to limit or quash Microsoft's subpoena in the FTC case, it has to do so today and then we'll probably find about it tomorrow.

In other Microsoft-ActivisionBlizzard news, Politico now also reports on the Statement of Objections (SO) that the European Commission has sent to Microsoft over the transaction:

🚨The European Union has issued Microsoft with a formal antitrust warning over its $69 billion swoop for Activision-Blizzard. A statement of objections was sent to the U.S. tech giant over the record-breaking deal yesterday. Read more ($): https://t.co/mcpMBMFnEl

— Samuel Stolton (@SamuelStolton) February 1, 2023

I've already commented on the news of the SO (which was widely expected).

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U.S. Department of Commerce releases report on Competition in the Mobile Application Ecosystem: more breadth than depth, pretty good but not first-rate

Today the Department of Commerce's National Telecommunications and Information Administration (NTIA) released its Competition in the Mobile Application Ecosystem report (PDF) and issued a press release, NTIA calls for Changes to Boost Competition in Mobile App Markets. The report was ordered by President Joe Biden, who stressed the need "to bring more competition back to the tech sector" in a recent Wall Street Journal op-ed.

The press release says that--as the report itself notes--"new legislation and additional antitrust enforcement actions are likely necessary to boost competition in the app ecosystem." Unfortunately, the Open App Markets Act (OAMA) was not passed into law last year. There may be more of an opportunity for bipartisan consensus to bring it back than some people believe. House Republicans want to "[e]nsure app stores are not engaging in unfair or deceptive practices against developers"--but only "without expansive anti-trust authorities for [FTC] Chair Lina Khan." And almost a year ago to the day, the OAMA came out of the Senate committee with a 20-2 vote, after which many observers thought (as did I) that it was fairly likely to be adopted later that year. But no.

Last week it was reported that Apple increased its U.S. lobbying spend by 44% in 2022 (at the federal level). I commented on the extent to which that number is meaningful (the relative increase is plausible, but the absolute numbers are sandbagged).

The NTIA report released today quotes submissions from both sides. The most important players criticizing the current app store tyranny are Microsoft, Meta, Epic Games, and Spotify. The ones who primarily rush to Apple and Google's aid are the astroturfers from ACT | The App(le) Association and the "R Street Institute", which says things that are, in part, an insult to human intelligence.

The key strength of the 48-page NTIA report is that it provides a bird's-eye view of the mobile app store situation and of the views of key stakeholders in a way that readers can easily understand. The document covers a broad range of issues: not just the app tax but also the problem of arbitrary app reviews, changing rules, and even App Tracking Transparency (ATT).

It's suboptimal, though, and I don't just mean the fact that there are various typos (unusually many for a government document). As an app developer who tried to make a game work as a web app (and found the results extremely dissatisfactory), I believe the part about web apps could have raised several additional issues.

There are quotes from ACT | The App Association (again, it's actually an Apple Association) and the R Street Institute that argue small app developers benefit from the trust that end users place in apps they download from curated stores. First, if they trust an Apple or Google store, why wouldn't they also trust a Microsoft, Amazon, or Meta store? Second, independent software vendors (ISVs) have historically had great opportunities on open systems like Windows and the Mac (which compared to iOS is pretty open, though Apple may change that step by step). It's not like mobile app stores were needed so the little guys had a chance to succeed. I'm extremely cautious about what I download to my Windows computers (desktop and notebook) and never installed any malware (nothing was found whenever I scanned, and nothing ever happened that suggested the presence of malware), but even I install software from small developers: I'm just careful about where I obtain it from, but that doesn't mean I trust only Microsoft's own store.

Having said that, I definitely welcome the fact that the Biden Administration is urging Congress to legislate on mobile app stores. The OAMA should be revived, and that's what Senator Richard Blumenthal (D-Conn.) vowed to push for during this Congressional term. He is right that a bill that had bipartisan support at the committee stage (20-2) deserves a second chance.

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Sony's Jim Ryan, Activision Blizzard's Bobby Kotick SUBPOENAED in so-called gamers' lawsuit in San Francisco: trial witnesses may include Microsoft's Satya Nadella, Brad Smith, Phil Spencer

We're in the middle of a flurry of news concerning regulatory and legal challenges to Microsoft's acquisition of Activision Blizzard King (NASDAQ:ATVI). Before I talk about the latest, here's a list of the five most recent posts on the subject (with certain keywords highlighted only below):

• European Commission hands down Statement of Objections against Microsoft's purchase of Activision Blizzard King: MLex

• Microsoft offers commitment to U.S. court not to close Activision Blizzard merger before May, but seeks outright dismissal of so-called gamers' lawsuit anyway

• Nvidia's outside counsel enters appearance in Federal Trade Commission's Microsoft-ActivisionBlizzard case

• Activision Blizzard points competition regulators to Sony's 'The Last of Us' blockbuster based on PlayStation-exclusive first-party game in merger context

• Sony caught lying, possibly to EU antitrust chief Margrethe Vestager: Microsoft makes clearest public statement yet on 'parity' aspects of ten-year Call of Duty offer

The latest development is now a "joint" case management statement in the Northern District of California, but I put "joint" in quotes because the document effectively contains a pair of widely divergent positions taken by Microsoft (the defendant) and a group of ten plaintiffs. I don't doubt that the plaintiffs are actually gamers (as large parts of the world's population are) but in economic terms this is a lawyers' (not gamers') lawsuit. Here's the filing:

The lawyers seeking to extract legal fees from Microsoft say in the filing that they "have served subpoenas on the following witnesses for depositions":

• Activision Blizzard, Inc.

• Nintendo of America Inc.

• Sony Interactive Entertainment, LLC

• Robert "Bobby" Kotick, CEO of Activision Blizzard, Inc.

• Doug Bowser, CEO and President, Nintendo of America Inc.

• Jim Ryan, President and CEO, Sony Interactive Entertainment, LLC

Elsewhere they declare their intent to call the following witnesses to testify at trial:

• the three executives mentioned above;

• themselves (the ten plaintiffs, though no one would even care to testify, much less spend money on legal fees, in a worst-case scenario that is not just unrealistic but even in anyone's wildest dreams doesn't amount to more than having to buy an Xbox and maybe spending a few dollars more on each of a few games);

• Microsoft CEO Satya Nadella;

• Microsoft President Brad Smith; and

• some unnamed-for-now other witnesses such as "[e]mployees and agents of Defendant Microsoft" and potential expert witnesses.

Note that I'm using my own terminology here when trying to explain in clear and simple terms what the case management debate is about, which in the interest of clarity deviates significantly from the words found in the actual document:

Microsoft considers those lawyers' fishing expedition excessive and at least premature. A big topic of discussion at tomorrow's case management hearing--in preparation of which the filing was made about an hour before midnight on Tuesday-- will be whether discovery really has to go forward now or can wait. Microsoft argues that things are in flux due to the ongoing regulatory reviews, which may result in commitments made by Microsoft and/or remedies imposed by regulators that change the picture. In particular, any argument about vertical foreclosure may go away if long-term licenses are extended to the likes of Sony.

Microsoft says that if discovery begins now, but the landscape changes, some of the same witnesses may have to be deposed again. That's why Microsoft proposes to firstly resolve the pending motion for a preliminary injunction, and to let discovery begin at the earliest if and when a PI actually comes down.

The argument about things being very much in flux is also at the heart of certain parts of the motion to dismiss the lawyers' lawsuit that Microsoft brought a few hours prior to the case management statement.

The fee seekers argue that Microsoft is trying to relitigate its motion to stay, which the court denied after a January 19 hearing. But federal judges enjoy some discretion as they manage their dockets, and just like Judge Jacqueline Scott Corley slowed down the case (without formally ordering a stay) last time, she may still tell those lawyers to hold off. The case management statement reveals that Judge Corley had two concerns at the January 19 hearing:

• She wouldn't want the transaction to close before the plaintiffs get a chance to obtain a PI, but

• she also noted that the transaction "may change" and, as Microsoft sums it up now, "efforts to shoot at something different from the final transaction may be wasted time."

Microsoft's proposal addresses both of the court's concerns: Microsoft is fine with stipulating on the record at the Thursday hearing not to consummate the transaction before May 1, and to hold a PI hearing one week earlier (April 24), but in the meantime doesn't want the plaintiffs to perform additional discovery beyond materials from the FTC's in-house adjudicative proceeding, which Microsoft is prepared to provide after a protective order has been entered.

What do the class-action lawyers want? For the avoidance of doubt, this here is not formally a class action yet, but economically comes down to one and a damages claim has already been announced for the event the deal goes through.

Incredibly, they request an April 3 trial date. April 3, 2023, that is. And they want a full two weeks. Lest we forget, we're talking about one of the busiest courts in the world...

Microsoft calls that timing "incredibly premature given the outstanding regulatory approvals and FTC litigation" and proposes the following schedule instead (with no trial date to be set now, and without taking a position on the length of a trial yet):

• 02/17: plaintiffs' opposition to Microsoft's motion to dismiss

• 02/24: reply in support of motion to dismiss

• 03/09: hearing on motion to dismiss

• 03/20: opposition to PI motion (this step and the ones below might be rendered unnecessary if Judge Corley meanwhile dismisses the complaint as a whole or just the prayer for injunctive relief)

• 04/10: reply in support of PI motion

• 04/24: PI hearing

As for discovery, Microsoft notes that it has "offered to produce [to the class-action lawyers] 9.5 million pages of documents that it provided to the FTC following the entry of an appropriate protective order" (emphasis added).

Furthermore, Microsoft would be prepared to provide those lawyers with deposition transcripts from the FTC case. But Microsoft does not want them to ask the same questions the FTC already has, wasting senior executives' time.

The parties have not yet agreed on the language of a protective order, meaning that the court will likely have to decide. The class-action lawyers claim that Microsoft made too far-reaching edits compared to the model protective order, but Microsoft points out that what it proposes is simply consistent with what those class-action lawyers accepted in a different case (a vaping antitrust litigation they proudly mention on their website, by the way).

Based on the joint case management statement and my experience with such discussions, I believe the class-action lawyers made a totally overreaching demand by requesting an April trial as well as immediate and unfettered discovery, and I doubt that Judge Corley will consider their positions reasonable.

Third parties like Activision Blizzard, Sony, and Nintendo may move to quash or limit any subpoenas, and will (or should) also have an interest in not letting discovery go forward right away in that Northern California case. In the FTC's in-house litigation, Sony is very reluctant to provide documents and/or fact witnesses. Sony has a deadline today (Wednesday) to move to quash or limit Microsoft's subpoena, and I guess we will see something, though the FTC may upload it to its website only the next day. For as much as Sony wants to delay or preferably derail Microsoft's purchase of Activision Blizzard, wide-ranging discovery in those highly public U.S. proceedings is not in the PlayStation maker's interest.

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