The FTC still believes Microsoft’s $69 billion deal to buy Activision Blizzard is a “threat to competition,” an agency spokesperson said Friday. Microsoft closed the deal Friday after getting approval from the U.K.’s antitrust regulator. The FTC remains “focused on the federal appeal process” despite Microsoft and Activision “closing their deal in advance of a scheduled December appeals court hearing,” the agency said. Microsoft’s concessions to the U.K. are a “whole new facet to the merger that will affect American consumers, which the FTC will assess as part of its ongoing administrative proceeding. The FTC continues to believe this deal is a threat to competition.” The FTC withdrew its administrative complaint against the deal in July, after motions for preliminary injunction were denied by a district court and the 9th U.S. Circuit Court of Appeals. As part of its agreement with the U.K., Microsoft agreed to sell the streaming rights for Activision's games to Ubisoft for 15 years. It also committed to keeping the newly acquired game Call of Duty on Sony’s PlayStation for a decade and offering the game on Nintendo Switch. The U.K. Competition and Markets Authority in a post Friday called the streaming concession a “gamechanger.” The CMA “made sure Microsoft can’t have a stranglehold over this important and rapidly developing market,” said Chief Executive Sarag Cardell. “As cloud gaming grows, this intervention will ensure people get more competitive prices, better services and more choice.” The U.K. regulator initially blocked the deal in April. “Today is a good day to play,” Microsoft Gaming CEO Phil Spencer wrote in an X post Friday. NextGen Competition Executive Director George Rakis urged the FTC to continue scrutinizing and ultimately unwind the deal, citing Microsoft’s 20-year campaign blocking its U.S. workforce from unionizing. “The closing of the largest merger in tech history marks a sad day for competition, worker rights, and consumers,” said Rakis. Microsoft President Brad Smith in a blog post Friday reaffirmed the company’s commitment to its neutrality agreement with the Communication Workers of America, which will apply when the deal goes into effect.
The U.S. opposed an expedited briefing schedule from Chinese printer cartridge manufacturer Ninestar Corp. in the company's case against its placement on the Uyghur Forced Labor Prevention Act Entity List. Ninestar's motion would hold the government's motion to dismiss in abeyance pending resolution of the company's bid for a preliminary injunction. The U.S. said "it is reversible error for the Court to delay consideration of its jurisdiction until after ruling on the motion for a preliminary injunction" (Ninestar Corp. v. United States, CIT # 23-00182).
OpenAI “unduly delayed” bringing trademark infringement claims against Open Artificial Intelligence and Guy Ravine and therefore has no legal entitlement to injunctive relief, said defendants’ Wednesday motion to dismiss (docket 4:23-cv-03918) in U.S. District Court for Northern California in Oakland. Plaintiff OpenAI alleges the defendants have infringed on its OpenAI trademarks since Ravine filed his trademark application for Open AI in December 2015, “nearly eight years ago,” said the accompanying memorandum of points and authorities. The complaint “provides no excuse for belatedly commencing” the August lawsuit, and moving for injunctive relief Sept. 29, “because there is none,” defendants said. OpenAI “omits from its Complaint” that it received actual notice of defendants’ use of their “Open AI” trademark from the U.S. Patent and Trademark Office (PTO) several times since Jan. 5, 2017, when the PTO first alerted OpenAI to defendants’ “then-pending trademark application for the ‘Open AI’ mark," said the memorandum. After the publication of Ravine’s Open AI mark on Aug. 1, 2017, OpenAI received two additional notices of “Nonfinal Office Action from the PTO refusing to register Plaintiff’s ‘OpenAI’ trademarks because of the likelihood that these marks will be confused with Mr. Ravine’s registered trademark,” the filing said. OpenAI, having had notice of defendants’ trademarks since January 2017, “cannot now claim that there is any purported emergency that justifies the extraordinary award of preliminary injunctive relief in advance of an adjudication or trial on the merits of its claim,” said the memorandum. OpenAI’s request for preliminary injunctive relief can’t survive as a matter of law, so the court should grant defendants’ motion to dismiss and dismiss the request for injunctive relief, said the memorandum.
The International Trade Commission published notices in the Oct. 13 Federal Register on the following AD/CVD injury, Section 337 patent or other trade proceedings (any notices that warrant a more detailed summary will be in another ITT article):
The Commerce Department and the International Trade Commission published the following Federal Register notices Oct. 13 on AD/CVD proceedings:
The court should grant the FTC’s motion to strike and dismiss defendants Iqvia and Propel Media’ s constitutional and equitable affirmative defenses with prejudice, said the FTC’s Wednesday reply memorandum of law (docket 1:23-cv-06188) in U.S. District Court for Southern New York in Manhattan. The FTC moved the court last month to strike those defenses asserted by Iqvia on the grounds that several raise constitutional challenges to the FTC’s process and powers that are “immaterial” and “impertinent” to the “narrow inquiry” that the court must undertake pursuant to Section 13(b) of the FTC Act in evaluating a claim for a preliminary injunction enjoining Iqvia from completing its purchase of Propel Media. Iqvia also raised defenses of laches and estoppel that weren't properly pled and can’t be raised against the government in the circumstances of this case, said the FTC's reply. The FTC will suffer prejudice if forced to expend resources defending against “sideshow matters that have no bearing on the Section 13(b) inquiry," said the agency. That's "especially true in light of the expedited nature of these proceedings and the far-reaching implications of Defendants’ allegations -- which attack the constitutionality not just of the FTC, but also of other federal agencies that use administrative proceedings to protect and serve the American public,” it said in September. Defendants argued in their opposing memorandum of law this month (see 2310050057) that Section 13(b) of the FTC Act allows a court to issue a temporary restraining order and preliminary injunction in favor of the FTC only after “weighing the equities” and considering its likelihood of success. “The Court must consider whether the FTC is likely to ultimately succeed on its underlying claim that the merger would be anticompetitive, and must weigh the equities of enjoining the merger pending the administrative proceedings,” defendants said, saying their constitutional defenses “challenge the constitutionality of the FTC itself as well as of the administrative proceedings in connection with which the FTC initiated this action.” Defendants didn’t cite one Section 13(b) case to support their “novel interpretation,” said the FTC’s Wednesday reply. Given the importance of constitutional challenges, “the statutory scheme of the FTC Act and the Federal Rules mandate certain procedures to ensure that the government has sufficient time to defend itself against such charges, which have implications across federal agencies,” it said. Defendants’ “self-imposed drop-dead date” for the acquisition, which they have established can be moved, “is not a basis to push this Court to grapple with far-reaching constitutional issues on an expedited schedule,” the FTC said.
U.S. District Judge Timothy Brooks for Western Arkansas in Fayetteville set a case management hearing Nov. 30 at 1:30 p.m. CST in NetChoice’s lawsuit to strike down SB-396, the Arkansas age-verification Social Media Safety Act, said Brooks’ signed initial scheduling order Wednesday (docket 5:23-cv-05105). Brooks anticipates at the hearing being able to set a trial date to come about four months after the completion of discovery, said his order. The purpose of the hearing is to assess the “pretrial needs of the case,” and to help the court craft an “appropriately tailored” case management order, it said. Counsel should be prepared “to identify and discuss all genuinely disputed issues of fact and law,” it said. Brooks “will also hear argument on any pending motions which may be ripe for consideration,” it said. The judge in an Aug. 31 order granted NetChoice’s motion for a preliminary injunction to block Arkansas Attorney General Tim Griffin (R) from enforcing SB-396 (see 2309010024). NetChoice won the injunction only hours before SB-396 was to take effect Sept. 1.
U.S. District Judge Donald Molloy for Montana in Missoula inundated Montana Solicitor General Christian Corrigan with tough questions during oral argument Thursday when Corrigan defended against a preliminary injunction to block Montana Attorney General Austin Knudsen (R) from enforcing SB-419, the state’s TikTok ban, when the statute takes effect Jan. 1. Five TikTok creators, plus TikTok itself, are seeking the injunction in two consolidated cases (dockets 9:23-cv-00056 and 9:23-cv-00061).
The Commerce Department is amending final determination from the antidumping duty investigation on metal lockers from China (A-570-133), implementing a recent Court of International Trade decision that resulted in only slight changes to AD rates for Chinese companies. Cash deposit rates set in this amended final determination are effective as of Oct. 8.
Robert F. Kennedy Jr.’s “latest bid to dictate the content moderation policies of a private entity" seeks the "remarkable relief" of preliminarily enjoining Google from exercising its discretion to remove videos conveying "dangerous COVID-19 and vaccine misinformation” on its YouTube platform, said Google’s opposition Monday (docket 3:23-cv-03880) in U.S. District Court for Northern California in San Francisco to Kennedy’s Sept. 25 motion for an injunction.