EU’s Microsoft-Activision OK Raises Question: Fix Or Fight?

Becket McGrath provided comments on Bryan Koenig‘s article for Law360

Law360 (May 16, 2023, 5:56 PM EDT) — European Union antitrust officials’ clearance on Monday of Microsoft Corp.’s planned $68.7 billion takeover of Activision Blizzard Inc. only marginally boosted prospects for a deal still under challenge in the United States and facing a U.K. block, but it does highlight important differences among the three enforcers.


The CAT undertakes a judicial review, rather than merits assessment, and tends to defer to the CMA on substantive assessments, including whether or not to accept a remedy (absent procedural failures). At least the CAT process is relatively quick, so the parties should have an answer from the CAT in 6 months or so,” Euclid Law Ltd. partner Becket McGrath said in an email.

However, even a six-month review would blow past the merger deal’s built-in July 18 deadline. If the companies don’t extend that deadline and the deal collapses, the agreement allows Activision to walk away and hit Microsoft with an up-to $3 billion breakup fee.


Even if Microsoft manages to defeat the FTC challenge, a lasting U.K. decision against the transaction could be prohibitive.”It’s sometimes possible to carve out a jurisdiction or impose a geographically limited remedy … to avoid a total block, but I can’t see how that could be done here for what are ultimately global businesses, plus the CMA prohibition removes any possibility to negotiate such an outcome in any event,” Euclid Law’s McGrath said.

(Full article available to Law360/MLex subscribers)

–Additional reporting by Najiyya Budaly. Editing by Kristen Becker.  All Content © 2003-2023, Portfolio Media, Inc

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