| LurkerJ said:
[...] |
OK this has gotten too long and too time-consuming so I will reply in parts and maybe complete another time.
But first you mention read the transcript, I did listen to the audio live but the transcript is still not uploaded to the official site (at the time of writing this): https://www.catribunal.org.uk/cases/159041223-microsoft-corporation
So if you have another source, please share.
Also, reading through your comment I can already address a few points where I think you misunderstood me:
| LurkerJ said:
The judges having to identify mistakes done by the CMA that resulted in the quash was bad optics" Actually, it would've been beautiful optics to see the CAT remitting the case to the CMA or telling them "you're being irrational". [...] |
By bad optics, I meant for the CMA alone. A quash is in all cases a loss for the CMA.
Also, the judge was not actually saying he would quash the investigation on the spot, he was simply telling the CMA they had entered quash territory. The Judge had no power at that time to issue a quash, for that he would either have to wait for the proceeding completion(all the appeals) or accept a motion of summary judgment presented by MS or the CMA to bypass the in-person court case and be judged on paper. The judge here was simply heavily weighting denying the Stay motion to force the court case to proceed with the added note to the CMA that they had already lost some credibility in this.
| LurkerJ said:
Correct me if I am not wrong, both the CMA/MS have shown the judge the legal basis for how and why this new proposal should be considered already and that's why the conditional adjournment was given? |
It would happen Thursday if I recall, I think but MS had some issues disclosing information in regards to their dealing with the CMA that's why I think at one point they asked the public transmission to be stopped (But my memory is not as secure as I would like on this). I think the MS/CMA proposed to show evidence the day after but got pushed back to Thursday.
MS and CMA have not shown they have a legal basis but convinced the judge they do, that's why the decision was conditional.
| LurkerJ said:
I am not sure why you think I was attacking you? You're genuinely smart, and you have genuinely indulged in speculation in your post: |
It was not the issue here, there's is speculation and deduction which I substantiate to the best of my knowledge, that's not supposed to be an issue, this is all we can do literally in most case, however, the suggestion that I'm "involved in this which makes the context you're providing for the "quash" disingenuous. "
This means I acted partisanly against the CMA and so analyzed the situation through that prism. Discrediting me as a result and not the argument that I put forth. If I acted as such then arguing my argument correctly should make it transpire by itself.
My speculation themselves here is based mostly on the strong choice of words the judge had. basically telling the CMA he was about to not allow the stay and telling the CMA they were already losing before the appeal even began. Also the "Why didn’t you listen to these new proposals before?" you don't want to hear this from a judge addressed at you that's for certain.
| LurkerJ said:
But you honestly believe that the CMA findings are so baffling and so unreasonable it's obvious for everyone to see, so why do you not expect the CAT to not see what you're seeing? |
The rationality test is not solely reserved for the findings but for any decision the CMA has taken during the process. But also, that's not what I said, I was simply highlighting what you have to do to win an appeal against the CMA.
In other jurisdictions like the US, it falls on the FTC to prove theirs a high likelihood of SLC, the CMA only to put forth an SLC theory and then it falls on the merging parties to prove their theory is so unreasonable no one else would conclude the same.
If there's an area with the possibility to have found the CMA guilty of such it would have been with the refusal to accept remedy proposal as hard to monitor while other agencies were fine monitoring remedies. But even then I'm not believing the CMA would have been found unreasonable, just highlighting it may have been a possibility. Nonetheless, the CAT is also limited to rules on concerns raised by the merging party and I think those all focused on the lawfulness of the decision and not any reasonability test. So no the CMA would not have been found unreasonable in the end.
| LurkerJ said:
The CAT is there to keep them in check, the CAT literally has the power to look at the CMA report and threw it in the trash, the CMA can't abuse their powers, the CMA haven't abused their power. |
Did not say they have, just that their conclusions raised questions. Would you not raise questions if it were you the one that had attributed such power to the CMA to see them take a decision and have the vast majority of experts telling in the media the CMA decision did not make any sense?
| LurkerJ said:
The CMA was following the process, you haven't shown any evidence of this not being the case. To suggest they fuelled their detractors is victim blaming. |
The CMA has been quashed in multiple cases, but it never reached a different conclusion than its original finding. The CMA had already the reputation of being the one regulator to kill mergers. As the government, it's normal to start asking questions somewhere. Also, I truly don't know why you bring victim blaming here, the CMA is certainly not a victim of anything.
| LurkerJ said:
The findings aren't so baffling, the fact MS chose to settle through a longer process instead of going ahead with the scheduled CAT hearings tells me they weren't confident in getting the outcome they needed. |
All evidence point to the CMA lending a deaf ear to MS's proposal to finally accept to negotiate, not the other way around, MS has stated since the beginning they were resolved to find solutions with the CMA (and again this is also supported by logics, there's no way MS value the cloud gaming scene in UK more so than this transaction, the CMA should always have been able to get appropriate concession on this SLC). That's why the judge told the CMA "Why didn’t you listen to these new proposals before?".
| LurkerJ said:
The CMA and the FTC have acted within the law by communicating with each other, if I remember correctly, MS has given them permission to communicate as well. There was nothing wrong with this and I am not sure why you think their communications are worth mentioning. |
My memory might not be accurate here, but didn't MS point to the high level of communication between the CMA and FTC in the pre-hearing phase of the CAT appeal to show both were not just exchanging information but coordinating? It may have been from another source, I'll look that one up another day.
Last edited by EpicRandy - on 19 July 2023
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