Ryuu96 said:
This is very interesting.
The CMA wants to delay the hearing to October 2nd:
The CMA submits that the Application has been made as a last resort to protect the public interest in ensuring that the CMA is able fairly to defend the decision at any substantive hearing, and so that the CMA can provide effective assistance to the Tribunal. If the hearing were adjourned to 2 October 2023, the CMA considers it would be able to prepare and present its case.
It really seems like the CMA is feeling the pressure now; they don't think that the case can be prepared for the end of July:
"The position has now been reached in which First Treasury Counsel's view is as follows: it is not possible for the case to be prepared and presented effectively on behalf of the CMA on the current timescales with the hearing at the end of July (ie four weeks away). The case involves very important points of principle; and a subject matter of considerable importance to the public interest. It is enormously detailed and complex, especially given the very large volume of new factual and expert evidence adduced by Microsoft as noted in paragraph 6 above. Even if a third suitable KC were now to be found, it would not be possible for the necessary preparation to be done effectively."
The CMA says that if the hearing happens on July 28th it wouldn't be proportionate:
The CMA, supported by Prevett 1, contends that the existing hearing date would not be in the interests of justice or proportionate. To the contrary, it would result in prejudice and injustice to the CMA and the public interests it seeks to represent.
On the other hand, it sounds like MS/ABK are seriously challenging the draft final order (as MLex said) and the CMA will likely need more time with it:
"There have been a range of other developments in relation to the proceedings which either have already, or will soon, divert significant resources of the CMA away from the preparations for the hearing. These include an increase in the scale of work that will be involved in relation to a consultation procedure on a final order in relation to the CMA's merger decision in this case. These developments mean that senior staff who have subject matter expertise in relation to the decision challenged in these proceedings are unlikely to be able to provide sufficient assistance to the CMA's representatives at the times when it will be required if the hearing is to start at the end of July."
So, now time is of the essence for everyone: MS, ABK, the FTC and the CMA.
If MS wins the FTC, this will add even more pressure to the CMA. Could that open a window for a settlement? 🤔
Extremely fascinating times ahead.
Source: Idas
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This speaks volumes about CMA's confidence in their own findings lol. They had more than a year to collect data and prepare dutifully.
I hope the CAT is not persuaded by such low tactics or that if that's the case they quash the CMA injunction and so allow MS to close the merger while awaiting resolution of the CMA.
From what I understand, companies are normally allowed to close a merger while a review is pending (that's why the CMA also added an injunction preventing MS from closing). The CMA would then issue initial enforcement order (IEO) to hold separate the target business. However, this should be a non-issue for MS as they fully intended to do so even after the merge is fully completed. https://www.skadden.com/insights/publications/2021/11/the-uks-competition-and-markets-authority-announces-fine-for-breaching-an-order-to-hold-separate
