9th Circuit Is Urged Not to Fall for FTC’s ‘Litigation Gamesmanship’ on Emergency Motion

The FTC’s “claimed emergency” in its Thursday evening motion before the 9th U.S. Circuit Appeals Court for an injunction pending appeal blocking Microsoft from consummating its Activision Blizzard buy “is entirely of its own creation,” Microsoft and Activision told the 9th Circuit in an opposition filing Friday (docket 23-15992). The FTC asked the 9th Circuit to act on the motion by 11:59 p.m. PDT because that’s when the district court’s temporary restraining order enjoining the merger expires.

The FTC acted “for the better part of a year and a half as though this case was not an emergency necessitating federal court intervention,” said Microsoft and Activision. It’s “hard to comprehend” the FTC’s arguments for why the emergency motion couldn’t be filed earlier than well after the close of business on Thursday evening, they said. (The docket report shows the motion was filed at 7:36 p.m. PDT.) The 9th Circuit shouldn’t mistake the FTC’s “litigation gamesmanship” for an emergency meriting the court’s “deviation from the ordinary appellate process,” they said.