The FTC now perversely responds that the pro-consumer benefit of increasing access to Call of Duty is somehow anticompetitive because only one subscription service, Xbox's Game Pass, will have Call of Duty post-merger. Mot.14-15. But that is one more subscription service than the FTC's own expert predicted would have Call of Duty absent the mer-ger. In characterizing this unambiguously pro-consumer outcome as an- ticompetitive, the FTC commits the cardinal sin of antitrust: mistaking a competitive disadvantage for a particular competitor (namely, the mar- ket-dominant Sony) with harm to competition and consumers. See Bruns- wick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977); Op.39 (characterizing post-merger expansion of Activision content to new plat- forms and delivery mechanisms as "[p]erhaps bad for Sony. But good for Call of Duty gamers and future gamers").
The FTC's reliance on Heinz for this point is ironic given that the injunction granted in Heinz did, in fact, kill the proposed merger. See FTC v. H.J. Heinz Co., 164 F. Supp. 2d 659, 659 (D.D.C. 2001) (noting that the company "announced publicly within hours of the Court of Appeals' decision [granting a preliminary injunction] that it had abandoned its plans to acquire Beech-Nut Foods").
Regardless, any quibbles about the precise phrasing of the legal standard are irrelevant because the district court repeatedly found that the FTC had no evidence to support its claims of harm, meaning that they would have failed under any plausible standard. See, e.g., Op.33-38 (explaining why, for eight different reasons plus an additional reason "not necessary to the Court's finding," the "evidence points to no incentive to foreclose [Sony]"); Op.40 ("overwhelming evidence of the combined firm's lack of incentive to pull Call of Duty from PlayStation"); Op.41 (FTC's expert's opinions "not based on evidence"); Op.49 (lack of "explanation, let alone evidence" why Activision would put its game on subscription services); Op.50 (similar, as to cloud). It is telling that the FTC's incomplete and revisionist narrative does not contain a single citation to the district court's factual findings, which "may not be set aside unless they are clearly erroneous."
Last edited by Ryuu96 - on 14 July 2023
