@Christopher.
Tomorrow (Friday) is what matters because the 9th circuit court of appeals will decide whether to offer an extension of the Temporary Restricting Order until *they* rule on the FTC’s appeal or not, as the TRO expires on Midnight on Friday.
If they extend the TRO tomorrow, then the appeal will happen and will have to go through its whole hearings and such. The deal cannot close until either the court of appeals rules against the appeal, or the extended TRO expires again.
If they do not extend the TRO tomorrow, the appeal is dead unless Microsoft/activision are feeling particularly conciliatory.
Without a TRO extension, Microsoft/Activision can close the deal at any point. The appeal only aims for a Preliminary Injunction (as it appeals a decision denying a preliminary injunction to begin with), and preliminary injunctions can’t be retroactive. So if the deal is closed before the Appeal court can rule, they cannot grant a preliminary injunction on something that already happened, so the appeal is dead.
Then the FTC can still do their own administrative process and such (that is completely separate from the appeal and it was never at risk of not happening unless the FTC gives up), but at that point, they have some large hurdles to jump, because even if the administrative court ruled against the merger, it’s the FTC’s turn to be bogged in appeals, because a divestiture order can be appealed by Microsoft through all three degrees of judgment (all the way to the Supreme court) before it becomes executive.
Basically, the question is very binary and it’ll come out tomorrow by Friday at Midnight.
1: The Appeal Court extends the TRO -> Appeal happens, and we’ll have to see what happens on its merits.
2: The Appeal Court declines to extend the TRO -> Microsoft has time to close the deal, which effectively kills the appeal, and the FTC will be bogged in a long and complex process to seek either additional remedies or divestiture.
