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Microsoft called FTC unconstitutional, regrets mistake

Microsoft called FTC unconstitutional, regrets mistake

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A photo shows two people as they walk past a Microsoft logo on a gray wall.

photo: Zed Jameson/Bloomberg (Getty Images)

Microsoft today filed a revised response to a US Federal Trade Commission lawsuit designed to stop the tech giant from buying Call of Duty publisher Activision. The initial submission contains multiple arguments that the FTC itself and its judiciary are unconstitutional. But now Microsoft has pulled that language from the document and said it was all a mistake. You know, just the straight line of calling a major government agency unconstitutional.

Last year, Microsoft announced its plans for consumption Call of Duty and World of Warcraft publisher Activision Blizzard for a as much as $69 billion. Since then, Microsoft and Activision Blizzard have clashed pushback and legal hurdles around the world while various government agencies and regulatory committees are investigating whether the massive deal would give Microsoft an unfair advantage over its competitors. As you’d expect, Microsoft and Activision Blizzard hit back spent 2022 filing responses, documents and court filings in an attempt to carry out his transaction.

In a press release issued by the FTC last month, the agency announced a lawsuit against the merger, arguing that Microsoft would be able to suffocate its competitors by making games exclusive to Xbox and manipulating prices if the deal goes through. Microsoft fired back with a response that contained many arguments, including the claim that the FTC itself was actually unconstitutional.

However, as reported by Axios, Microsoft has revised its response today to the case and omitted the section arguing that the FTC’s case was “invalid because the Commission’s structure as an independent agency wielding substantial executive power” violates Article II of the US Constitution. In the same section of the original filing, Microsoft also argued that the lawsuit and court proceedings brought by the FTC are “void” because the FTC’s formal complaint violates Article III of the US Constitution. Oh, and Microsoft’s legal team also claims that the FTC’s “procedures” violate the company’s “equal protection right” under the Fifth Amendment.

Read more: Gamers are suing Microsoft to thwart its merger with Activision

Now all that is gone Microsoft tells Axios that probably shit wouldn’t have been in that original document in the first place.

“The FTC has an important mission to protect competition and consumers, and we quickly updated our response to omit language suggesting otherwise based on the Constitution,” said David Cuddy, Microsoft’s public affairs spokesman. Axios. “We initially put all potential arguments on the table internally and had to waive those defenses before filing.”

Microsoft says it appreciates all the “feedback” it has received about its arguments that the FTC itself is unconstitutional and is “engaging directly with those who have raised concerns” to make the company’s position on the matter “clear.” In other words, the FTC probably didn’t take too kindly to being called unconstitutional, and you probably shouldn’t piss off the people who are suing you and trying to stop your whole big merger from happening.

Axios reports that Activision is also retracting similar allegations it had included in its own, separate response to the same FTC case.


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