Microsoft Called FTC Unconstitutional, Regrets The Error

A photo shows two people as they walk by a Microsoft logo on a grey wall.

Photo: Zed Jameson/Bloomberg (Getty Images)

Today, Microsoft filed a revised response to the United States Federal Trade Commission’s lawsuit intended to stop the tech giant from buying up Call of Duty publisher Activision. The initial filing contained multiple arguments claiming the FTC itself and its court system were unconstitutional. But now Microsoft has yanked that language out of the doc and claimed it was all a mistake. Y’know, just your average oopsie of calling a large government agency unconstitutional.

Last year, Microsoft announced its plans to consume Call of Duty and World of Warcraft publisher Activision Blizzard for a whopping $69 billion. Since then, Microsoft and Activision Blizzard have faced pushback and legal roadblocks around the world as various government agencies and regulatory committees investigate if the massive deal would give Microsoft an unfair advantage against its competitors. As you would expect, Microsoft and Activision Blizzard have fought back and spent 2022, filing responses, docs, and court paperwork in an effort to make its deal happen.

In a press release put out by the FTC last month, the agency announced a lawsuit against the merger and reasoned that Microsoft would be able to stifle its competitors by making games Xbox exclusives and manipulating prices, should the deal go through. Microsoft fought back via a response that contained a lot of arguments, including the assertion that the FTC itself was actually unconstitutional.

However, as reported by Axios, today Microsoft refiled its response to the lawsuit and has omitted the section arguing that the FTC’s lawsuit was “invalid because the structure of the Commission as an independent agency that wields significant executive power” violates Article II of the US Constitution. In that same section of the original filing, Microsoft also argued that the lawsuit and legal proceedings being carried out by the FTC were “invalid” because the FTC’s official complaint violated Article III of the U.S. Constitution. Oh, and Microsoft’s legal team also claimed that the FTC’s “procedures” violated the company’s “right to Equal Protection under the Fifth Amendment.”

Read More: Gamers Are Suing Microsoft To Thwart Its Merger With Activision

Now all of that is gone and Microsoft tells Axios that it probably shouldn’t have been in that initial doc 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,” Microsoft public affairs spokesperson David Cuddy told Axios. “We initially put all potential arguments on the table internally and should have dropped these defenses before we filed.”

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

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

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