I updated the OT with the latest news and updates in the review process (US, China, Serbia, Chile).
Idas if Sony and Microsoft had weekend meetings and came to an agreement on terms for the 10 years, what realistic basis would the government have to block it? Obviously, they are separate and have the "final say" more or less, but if for example the Union is ok with it, shareholders are ok, the major vocal competitor is now ok, and other governments have approved so far, does that just weaken the CMAs/FTCs arguments against the deal if they are?
So I have another question. How important to regulators would it be for Microsoft to figure things out and getting Sony to agree to a deal, versus Microsoft making a deal with Regulators directly? If Microsoft was to get Sony to agree to a deal, does that put less pressure on the Regulators to require additional concessions, or make them more likely to approve it?
An agreement with Sony should definitively be helpful because a cause of concern and the basis for some of the theories of harm would almost "disappear". In any case, some regulators (CMA and FTC, mainly) could still believe that nascent markets such as cloud gaming or subscription services could be at risk post merger (even with the agreement), asking for more.
That the deal was finally notified in China and the review process has started. Probably no decision until April - May.
what do you think about this article
The U.S. government has been hit with four painful losses at antitrust trials recently but legal experts do not expect the Biden administration's regulators to slow efforts to make American business more competitive.
www.reuters.com
That in the next two years the FTC and DOJ will challenge lots of transactions, even if they may lose a few.
lol well there we go. I GUESS Politico is vindicated lol. Is that normal for regulators to just be like "nah.. don't bother"? Haha, seems like they've been gearing up for the fight on their end too for a while now. But I guess maybe that's also why they moved so quick with the EC?
If a regulator believes that only structural remedies could save a transaction and the parties are only offering behavioural remedies, they could tell you: "Don't bother" :p
Anyway, I think that history is important in this case too.
The FTC believes that letting Facebook acquire Instagram and WhatsApp 10 years ago was a huge mistake because back then social networks were a nascent market that now are dominated by a few giants with almost no real competition (and even more when those giants have been making killer acquisitions the last years to avoid any competition).
That's why now they are looking at new nascent markets (metaverse, cloud gaming, subscription services, virtual reality, etc) with a different perspective and with the idea to avoid the same mistake.
Interesting. I wonder how much influence this could have on the EC and CMAs decisions, we know they share similar concerns and presumably they talk with each other.
Idas
I understand how MS going for an early EC approval could be a sound strategy to pressure the FTC.
It seems to consider each regulator as an independent body isolated from the others, but don't the regulators interact with each other?
Why would the EC give an early approval if the FTC wants to wait and sue at the last minute?
Since an early clearance would thwart that strategy, wouldn't it put a dent in their relationship?
Wouldn't it make sense for all regulators to agree between them on the remedies offered and should no consensus be reached,
follow the original timetable to avoid pressuring one into taking steps they didn't want (an early suit for the FTC)?
Yes, the decision from the FTC could influence other regulators and in multi-jurisdictional cases like this one they talk to each other to reach some kind of consensus. But at the end of the day each regulator has to review the deal according to their local market and laws, so not every decision in a jurisdiction is going to be relevant or even useful for each authority.
For example, COD is a very relevant IP in the US market, even more than in UK or Europe, but it's not very important in China, Japan or South Korea, among other countries. At the same time, cloud gaming is present in markets like the US, UK or (part of) Europe, but it's non existent in South Africa, Chile, Colombia, Israel, Turkey, India or China (where not even Gamepass is available).
Then, if the FTC challenges the deal because they believe that COD is a huge input that if it gets acquired by MS it will become a "tipping point" for the cloud gaming and subscription services market, how is that relevant for countries where those services are not offered or where there isn't even a market for them?
So, although the issues are globally similar, they have to be analysed from the perspective of the corresponding market and laws.
Damn, so I guess a court battle seems most likely now?
Yes, unless there is an unexpected turn of events, in the US a court battle seems likely.
I've seen you say this in several posts but I don't think I've actually seen your opinion on it. Do you think this deal has a high chance of failing?
I work with the EPA so regulatory decisions here are very cut and dry but this kind of regulatory decision is alien to me.
I think that it can fail but more for being abandoned that rejected.
I'm still in a 70-65% range that it will get approved and that there are good legal arguments to defend it. But at the same time is a deal done by a Big Tech, for a gigantic amount of money, in digital and nascent markets, with huge opposition from a third party, with a lot of public exposure, with some regulators applying new rulesets (CMA) and others willing to take risks (FTC).
This is what is generating so much uncertainty and slowing down the deal.
The thing is that when you are surrounded by uncertainty for a long period of time and without a clear path ahead, sometimes the parties get anxious and prefer to pull the plug. MS was expecting a long ride but I don't know if they expected such a bumpy one.