Class-action lawyers representing "gamers" against #Microsoft & #ActivisionBlizzard are now allowed to go ahead with depositions of Phil Spencer @xboxp3, Amy Hood (Microsoft's CFO), @mattbooty (head of Xbox Game Studios), @BobbyKotick, Tim Stuart (Xbox CFO), Jim Ryan. Up to 3 hours each. Microsoft CEO @satyanadella and Microsoft President @BradSmi may not have to make themselves available due to special rules governing "apex" (top of organization) depositions, or to a much lesser extent. There will be further briefing about that if necessary. It may be practically possible for the merging companies to eliminate the need for all of those depositions by closing the deal soon, but that depends on the @CMAgovUK now. Theoretically there'll be a trial starting February 5, 2024, but no one seriously believes it would still make sense to seek an injunction against the deal at that point. This is the relevant part of the pretrial order Judge Corley just entered: The stay of discovery is lifted. Plaintiffs may notice the depositions of (1) Phil Spencer, CEO of Microsoft, (3) Amy Hood, CFO of Microsoft, (4) Matt Booty, head of Xbox Game Studios, (5) Robert A. Kotick, CEO of Activision, (6) Tim Stuart, Gaming CFO of Microsoft, and (7) Jim Ryan, President and CEO of Sony Interactive Entertainment (SIE). These depositions shall be no more than three hours. To the extent Plaintiffs also seek to depose Brad Smith, President of Microsoft, and Satya Nadella, Chairman of Microsoft, the parties shall meet and confer, and if necessary, submit a joint letter brief regarding their depositions. Any such joint letter brief shall be filed at least two weeks before the proposed deposition date. Plaintiffs shall reserve their request to depose Mr. Nadella until after they complete the other depositions. The Court tentatively sets a bench trial date of February 5, 2024. The parties shall meet and confer regarding a schedule for fact and expert discovery deadlines that works with that trial date, and by September 15, 2023, file a stipulation regarding their proposed schedule. Case 3:22-cv-08991-JSC Document 256 Filed 09/01/23 Page 1 of 2

It's about 9:30 PM in San Fran. About 2 hrs. later than the PI denial in the private lawsuit (mislabeled "gamers' lawsuit"). But still about 2.5 hours to go if Judge Corley intends to rule at the latest time that leaves the FTC 5 full biz days for getting emergency help from appeals court. The 5 full biz days were envisaged by the TRO, which came down while she was out of the country but was probably coordinated with her. I'm even more glad now that I did the Monday Twitter Space to explain that the FTC needs a PI while Microsoft & Activision merely need the TRO to go away (though, of course, what they really want is for the FTC's PI motion to be thrown out for good). We should all assume that Microsoft and Activision won't have consented to a TRO period that would kill the deal by delay -- and anything beyond the middle of this week would require their consent. As I explained in the Twitter Space, TROs can be ordered by U.S. courts - without notice to the other side, - without giving the other side a chance to respond (here, the decision came down prior to any opposition brief), - without a hearing, - without stating reasons (such as in this case), and - without an appeal being possible (only PIs can be appealed), BUT due to those far-reaching restrictions of defendants most basic rights, TROs can only be in force and effect for 2+2 weeks maximum unless a party accepts to be bound for longer than that. Here, I assume Microsoft and Activision did consent to be bound for more than 4 weeks, but not until/beyond July 18. Despite the late hour, I still think we may see something soon and suspect Judge Corley is putting in a night shift, but we obviously have no guarantees. The district court could give the FTC less time for help from the appeals court. The 5 business days are not a hard requirement. In Meta-Within, the circumstances were different as a stipulated TRO was in place for a certain period and then the FTC needed a PI or a new TRO, and got neither. But the FTC got no cooldown period there and the deal closed the day after the PI was denied. Here, Judge Corley did say at the hearing that there should be time for an appeal. She did not say 5 business days, though in that situation it was presumably what she was shooting for. If she ruled at, say, 2 AM Pacific Time, which would make it difficult for her to catch enough sleep given that she'll be in the courtroom at 8:30 AM (for Day 2 of a trial), she could very easily just clarify that the cooldown period ends next Monday at 11:59 PM Pacific Time. Whether she files at midnight or a little later doesn't make a practical difference for the FTC's ability (even including the help it may get from well-resourced deal opponents Sony and Google) to prepare an emergency motion. Don't worry. A United States District Court is not like the CMA.

Key conclusions by Dr. Bailey: 1. Call of Duty is not essential, critical, must-have, or uniquely important. 🧵124/X