23 01 11 Microsoft Motion To Expedite Briefing On Motion To Stay

Case 3:22-cv-08991-JSC Document 27 Filed 01/11/23 Page 1 of 9
1 Rakesh M. Kilaru (pro hac vice)

Anastasia N. Pastan (pro hac vice)
2 Jenna Pavelec (pro hac vice)
WILKINSON STEKLOFF LLP
3 2001 M Street NW, 10th Floor
Washington, DC 20036
4 Telephone: (202) 847-4000
Facsimile: (202) 847-4005
5 [email protected]
[email protected]
6 [email protected]
7 Valarie C. Williams (Bar No. 335347)
Tania Rice (Bar No. 294387)
8 Alston & Bird LLP
5600 Mission Street, Suite 2100
9 San Francisco, CA 94105
Telephone: (415) 243-1000
10 Fax: (415) 243-1001
[email protected]
11 [email protected]
12 Counsel for Defendant Microsoft Corp.
13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA
15 SAN FRANCISCO DIVISION
16 DANTE DEMARTINI, CURTIS BURNS, JR., Case No. 3:22-cv-08991-JSC

NICHOLAS ELDEN, JESSIE GALVAN,
17 CHRISTOPHER JOSEPH GIDDINGS- DEFENDANT MICROSOFT
LAFAYE, STEVE HERRERA, HUNTER CORPORATION’S NOTICE OF MOTION
18 JOSEPH JAKUPKO, DANIEL DERMOT AND ADMINISTRATIVE MOTION TO
ALFRED LOFTUS, BEOWULF EDWARD EXPEDITE BRIEFING; MEMORANDUM
19 OWEN, and IVAN CALVO-PEREZ, OF POINTS & AUTHORITIES IN
20 SUPPORT THEREOF
Plaintiffs,
21 v. Civ. L.R. 6-3, 7-11
22 MICROSOFT CORPORATION, a The Honorable Jacqueline Scott Corley
Washington Corporation,
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No Hearing Date Set Pursuant to L.R. 7-11(c)
Defendant.
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Case No. 3:22-cv-08991-JSC DEFENDANT MSFT’S ADMINISTRATIVE MOTION TO EXPEDITE BRIEFING

1 NOTICE OF MOTION AND ADMINISTRATIVE MOTION

2 TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD:
3 PLEASE TAKE NOTICE that Defendant Microsoft Corporation will, and hereby does,
4 move this Court to expedite the briefing schedule on the pending Motion to Stay.
5 The motion will be made based on this Notice of Motion and Administrative Motion, the
6 Memorandum of Points and Authorities herein, the accompanying Declaration of Rakesh Kilaru,
7 the Proposed Order, all other papers and pleadings on file in this action, and any other written or
8 oral argument or evidence that Microsoft might present to the Court.
9 REQUESTED RELIEF
10 1. Microsoft requests that the Court exercise its discretion to expedite briefing and
11 any hearing on its motion to stay.
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 INTRODUCTION
3 Microsoft respectfully requests that the Court expedite the briefing schedule on the pending
4 motion to stay this case. See Motion to Stay, Dkt. # 27. Plaintiffs seek to litigate this case
5 prematurely, in parallel proceedings that largely duplicate those initiated by the Federal Trade
6 Commission (“FTC”) on December 8, 2022. See Ex. A to Mot. to Stay, FTC Complaint. Microsoft
7 has asked this Court to stay proceedings pending the resolution of multiple regulatory proceedings
8 that prevent the parties from closing the transaction. See Motion to Stay, Dkt. # 27. Absent an
9 expedited briefing schedule on the motion to stay, Microsoft will have to expend resources on its
10 opposition to the preliminary injunction motion, which is due on January 20, 2023. But Plaintiffs
11 have no need for urgent, preliminary relief because the transaction they seek to enjoin (Microsoft’s
12 acquisition of Activision Blizzard King), cannot close until at least April 26, 2023. See Ex. G. to
13 Mot. To Stay, Competition & Markets Authority Notice of Extension (Jan. 5, 2023).
14 Microsoft also seeks expedited briefing on its motion because Plaintiffs recently indicated
15 that they seek to begin discovery immediately, including by attempting to depose senior leaders at
16 Microsoft and other third parties and to collect large swathes of highly sensitive business
17 documents. See Decl. of R. Kilaru ISO Mot. to Expedite Briefing ¶ 5. Without relief, Microsoft
18 will be taxed by burdensome and duplicative discovery requests while it awaits a decision on the
19 motion to stay.
20 STATEMENT OF ISSUES TO BE DECIDED

21 Whether to expedite the briefing on the pending motion to stay all proceedings in this case.
22 STATEMENT OF FACTS
23 This case challenges the proposed transaction between the third-place manufacturer of
24 gaming consoles, Xbox, and one of many publishers of popular video games, Activision Blizzard
25 King (“Activision”). On January 18, 2022, Microsoft announced its agreement to acquire
26 Activision. Microsoft and Activision’s agreement imposes a termination date of July 18, 2023.
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1 See Ex. H to Mot. to Stay, Microsoft/Activision Merger Agreement (Jan. 18, 2022), at 84.
2 Cognizant of that deadline, Microsoft and Activision have worked diligently to ensure that they
3 have the global regulatory approval to proceed with the acquisition. Microsoft cannot close the
4 transaction while certain foreign regulatory reviews remain open; the European Commission’s
5 current deadline for completing review is April 11, 2023, and the United Kingdom Competition
6 and Markets Authority’s deadline is April 26, 2023. See Ex. F to Mot. to Stay, European
7 Commission Docket Notice (Nov. 18, 2022); Ex. G to Mot. to Stay, Competition & Markets
8 Authority Notice of Extension (Jan. 5, 2023).
9 On December 8, 2022, the FTC filed a complaint against Microsoft and Activision before
10 the agency’s Administrative Law Judge (“ALJ”), alleging that the proposed acquisition would
11 violate federal antitrust laws. See Ex. A to Mot. to Stay, FTC Complaint (Dec. 8, 2022). The FTC
12 seeks to prohibit Microsoft acquiring Activision, and trial is currently scheduled for August 2,
13 2023. Given the time constraints on closing the deal, Microsoft, Activision, and the FTC’s
14 complaint counsel agreed to an expedited schedule, with fact discovery scheduled to close on April
15 7, 2023. See Ex. E to Mot. to Stay, FTC Scheduling Order (Jan. 4, 2023). The schedule maximizes
16 the likelihood that any proceedings by the FTC (either trial before the ALJ or a preliminary
17 injunction hearing in federal court, which the FTC has indicated it will pursue if necessary) can be
18 litigated and resolved by July 18, 2023.
19 Against that regulatory backdrop, and just weeks after the FTC filed its complaint,
20 Plaintiffs filed this lawsuit and simultaneously moved for a preliminary injunction to block the
21 proposed transaction on December 20, 2022. Like the FTC, Plaintiffs allege that the proposed
22 acquisition would lessen competition in various markets within the video game industry, violating
23 Section 7 of the Clayton Act. And Plaintiffs seek precisely the same relief—to block the proposed
24 transaction.
25 On December 30, 2022, the parties in this case entered a stipulation to extend all deadlines
26 by two weeks. See Stipulation, Dkt. # 16. On January 9, 2023, the parties held a teleconference
27 to discuss the filing of the motion to stay and discovery. Plaintiffs indicated they would oppose
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1 the motion to stay. On January 11, 2023, counsel for Microsoft notified Plaintiffs of their intention
2 to file this motion.
3 ARGUMENT
4 I. This Court should enter an expedited briefing schedule on the motion to stay.
5 Pursuant to Civil Local Rules 6-3 and 7-11, Microsoft requests an expedited briefing
6 schedule and any hearing on its motion to stay. See Civ. L.R. 6-3; Civ. L.R. 7-11.
7 A. An expedited briefing schedule would avoid litigating this case prematurely
8 and conserve the parties’ resources.
9 Without an expedited briefing schedule on the motion to stay, Microsoft will very likely
10 suffer substantial harm—the unnecessary expenditure of resources to respond to Plaintiffs’
11 preliminary injunction motion, which prematurely seeks to enjoin a transaction that cannot close
12 for several months. Defendant’s opposition to the preliminary injunction motion is due on January
13 20, 2023, well before briefing on the motion to stay would be complete on February 1, 2023. But
14 requiring Microsoft to litigate the preliminary injunction motion while this Court considers the
15 stay motion would undermine the very purpose of the stay: to avoid forcing Microsoft to defend
16 this case on two fronts.
17 Moreover, Plaintiffs have made clear that they intend to start discovery as soon as possible.
18 Before filing the stay motion, defense counsel sought to meet and confer with Plaintiffs’ counsel.
19 Decl. of R. Kilaru ¶ 3. A teleconference was held on January 9, 2023, during which Plaintiffs
20 stated their intent to begin fact discovery as soon as possible, including by attempting to notice
21 depositions and demanding the production of voluminous sensitive business documents. See id.
22 ¶¶ 3–4.
23 In light of this information, Microsoft seeks to expedite the briefing schedule on the motion
24 to stay. Without certainty concerning the status of this litigation, Microsoft will have to expend
25 resources opposing Plaintiffs’ motion and potentially beginning the discovery process, and the
26 Court may be asked to resolve disputes that would not occur if a stay is granted.
27 Any harm to Plaintiffs posed by an expedited briefing schedule is outweighed by the
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1 benefits of a speedy resolution of the motion to stay. Plaintiffs’ interest, as evidenced by their
2 representations to counsel for Microsoft, are to advance this litigation as quickly as possible.
3 Expediting the briefing schedule on the motion to stay would further that interest. In the event that
4 the Court decides to deny the stay, Plaintiffs will be in the same position as they are today; namely,
5 they can litigate their motion for preliminary injunction, and if that is unsuccessful, the case will
6 proceed to discovery. Meanwhile, Microsoft and Activision still will not be able to close the
7 transaction.
8 As explained in the brief in support of Microsoft’s motion to stay, a stay is especially
9 appropriate here, where there is no risk of harm to Plaintiffs from staying their case while
10 regulatory proceedings are ongoing. Plaintiffs’ interests are aligned with those of the FTC, which
11 is investigating the same issues raised by the Plaintiffs’ complaint; the transaction cannot close
12 because of ongoing investigations; and the FTC can seek an injunction in federal court to block
13 the transaction to the extent there is any risk of the parties to the transaction closing before that
14 case is resolved. For the same reasons, it makes sense to expedite consideration of the stay.
15 CONCLUSION
16 For these reasons, Microsoft respectfully requests that the Court grant its administrative
17 motion to expedite the briefing schedule on the pending motion to stay.
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1 Dated: January 11, 2023

2
By: /s/ Rakesh N. Kilaru
3 Rakesh N. Kilaru (pro hac vice)
Anastasia M. Pastan (pro hac vice)
6 Telephone: (202) 847-4000
Facsimile: (202) 847-4005
7 [email protected]
[email protected]
8 [email protected]
10 Alston & Bird LLP
Telephone: (415) 243-1000
12 Fax: (415) 243-1001
[email protected]
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4 Telephone: (202) 847-4000
Facsimile: (202) 847-4005
5 [email protected]
[email protected]
6 [email protected]
8 Alston & Bird LLP
Telephone: (415) 243-1000
10 Fax: (415) 243-1001
[email protected]

17 CHRISTOPHER JOSEPH GIDDINGS- [PROPOSED] ORDER GRANTING
LAFAYE, STEVE HERRERA, HUNTER DEFENDANT MICROSOFT
18 JOSEPH JAKUPKO, DANIEL DERMOT CORPORATION’S NOTICE OF MOTION
ALFRED LOFTUS, BEOWULF EDWARD AND ADMINISTRATIVE MOTION TO
19 OWEN, and IVAN CALVO-PEREZ, EXPEDITE BRIEFING
20 Plaintiffs,
Civ. L.R. 6-3, 7-11
21 v.
The Honorable Jacqueline Scott Corley
22 MICROSOFT CORPORATION, a
Washington Corporation, No Hearing Date Set Pursuant to L.R. 7-11(c)
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Defendant.
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28 [PROPOSED] ORDER GRANTING DEFENDANT MSFT’S
Case No. 3:22-cv-08991-JSC ADMINISTRATIVE MOTION TO EXPEDITE BRIEFING
1 [PROPOSED] ORDER
2 Defendant Microsoft moved to expedite the briefing of its motion to stay the action pending
3 the resolution of In re Microsoft/Activision Blizzard, No. 9412, brought by the Federal Trade
4 Commission before the agency’s Administrative Law Judge. Plaintiffs’ opposition to this motion
5 is due ____________, 2023, and any reply by Defendant Microsoft is due ____________, 2023.
6 A hearing on this motion will be held on ____________, 2023.
7 After considering the briefs, the arguments of counsel, and the evidence of record, the
8 Court GRANTS Defendant’s Administrative Motion to Expedite Briefing.
9 IT IS SO ORDERED.
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11 Date: _______________ ________________________________

12 Hon. Jacqueline Scott Corley
13 UNITED STATES DISTRICT COURT JUDGE
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[PROPOSED] ORDER GRANTING DEFENDANT MSFT’S
Case No. 3:22-cv-08991-JSC ADMINISTRATIVE MOTION TO EXPEDITE BRIEFING
Case 3:22-cv-08991-JSC Document 27-1 Filed 01/11/23 Page 1 of 3

4 Telephone: (202) 847-4000
Facsimile: (202) 847-4005
5 [email protected]
[email protected]
6 [email protected]
8 Alston & Bird LLP
Telephone: (415) 243-1000
10 Fax: (415) 243-1001
[email protected]

17 CHRISTOPHER JOSEPH GIDDINGS- DECLARATION OF RAKESH N.
LAFAYE, STEVE HERRERA, HUNTER KILARU ISO DEFENDANT MICROSOFT
18 JOSEPH JAKUPKO, DANIEL DERMOT CORPORATION’S ADMINISTRATIVE
ALFRED LOFTUS, BEOWULF EDWARD MOTION TO EXPEDITE
19 OWEN, and IVAN CALVO-PEREZ,
Civ. L.R. 6-3, 7-11
20 Plaintiffs,
The Honorable Jacqueline Scott Corley
21 v.
No Hearing Date Set Pursuant to L.R. 7-11(c)
22 MICROSOFT CORPORATION, a
Washington Corporation,
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Defendant.
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DECL. OF R. KILARU ISO ADMINISTRATIVE

Case No. 3:22-cv-08991-JSC MOTION TO EXPEDITE BRIEFING
1 I, Rakesh N. Kilaru, declare as follows:

2 1. I am a partner at the law firm of Wilkinson Stekloff LLP and represent Defendant Microsoft
3 Corporation in this litigation. I am admitted to practice in the Northern District of California pro
4 hac vice. I have personal knowledge of the facts set forth in this declaration and, if called as a
5 witness, could and would testify to that effect.
6 2. I make this declaration in support of Defendant Microsoft’s Administrative Motion to

7 Expedite Briefing. Microsoft respectfully requests that the Court exercise its discretion to expedite
8 briefing and any hearing on its motion to stay.
9 3. On January 9, 2023, counsel for the parties held a teleconference. Counsel for Plaintiffs
10 stated that they intended the call to serve as a meet and confer pursuant to Federal Rule of Civil
11 Procedure 26(f). Counsel for Defendant stated that they intended the call to serve as notice for the
12 filing of the motion to stay proceedings and to schedule a time to discuss the discovery process.
13 4. Counsel for Plaintiffs explained that they intended to begin fact discovery as soon as
14 possible, including by attempting to notice depositions of high-ranking Microsoft executives and
15 third-parties and demanding the production of voluminous sensitive business documents.
16 5. On January 11, 2023, counsel for Defendant notified opposing counsel of the intention to
17 file the instant motion to expedite briefing by email. Counsel for Plaintiffs indicated via email that
18 they would oppose the motion.
19 I declare under penalty of perjury, under the laws of the United States, that the foregoing
20 is true and correct.
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28 DECL. OF R. KILARU ISO ADMINISTRATIVE
1 Dated: January 11, 2023

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By: /s/ Rakesh N. Kilaru
6 Telephone: (202) 847-4000
Facsimile: (202) 847-4005
7 [email protected]
[email protected]
8 [email protected]
10 Alston & Bird LLP
Telephone: (415) 243-1000
12 Fax: (415) 243-1001
[email protected]
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DECL. OF R. KILARU ISO ADMINISTRATIVE

23 01 11 Microsoft Motion To Expedite Briefing On Motion To Stay

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23 01 11 Microsoft Motion To Expedite Briefing On Motion To Stay

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Case 3:22-cv-08991-JSC Document 27 Filed 01/11/23 Page 1 of 9

1 Rakesh M. Kilaru (pro hac vice)

14 NORTHERN DISTRICT OF CALIFORNIA

15 SAN FRANCISCO DIVISION

16 DANTE DEMARTINI, CURTIS BURNS, JR., Case No. 3:22-cv-08991-JSC

Case No. 3:22-cv-08991-JSC DEFENDANT MSFT’S ADMINISTRATIVE MOTION TO EXPEDITE BRIEFING

1 NOTICE OF MOTION AND ADMINISTRATIVE MOTION

8 oral argument or evidence that Microsoft might present to the Court.

1 MEMORANDUM OF POINTS AND AUTHORITIES

20 STATEMENT OF ISSUES TO BE DECIDED

1 Dated: January 11, 2023

1 Rakesh N. Kilaru (pro hac vice)

14 NORTHERN DISTRICT OF CALIFORNIA

15 SAN FRANCISCO DIVISION

16 DANTE DEMARTINI, CURTIS BURNS, JR., Case No. 3:22-cv-08991-JSC

6 A hearing on this motion will be held on ____________, 2023.

11 Date: _______________ ________________________________

1 Rakesh N. Kilaru (pro hac vice)

14 NORTHERN DISTRICT OF CALIFORNIA

15 SAN FRANCISCO DIVISION

16 DANTE DEMARTINI, CURTIS BURNS, JR., Case No. 3:22-cv-08991-JSC

DECL. OF R. KILARU ISO ADMINISTRATIVE

1 I, Rakesh N. Kilaru, declare as follows:

5 witness, could and would testify to that effect.

6 2. I make this declaration in support of Defendant Microsoft’s Administrative Motion to

1 Dated: January 11, 2023

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11 Date: _ __________________