FTC Trial: Nearly 1 Million Documents Couldn’t Catch Xbox Saying it Would Make Call of Duty Exclusive

At the heart of the multiple ongoing legal challenges to Xbox’s acquisition of Activision Blizzard, one core theme has cropped up again and again: will Xbox take Call of Duty exclusive if the deal is done? Xbox has repeatedly said no both verbally and in writing, and according to a judge in the recent FTC v. Microsoft trial, that attitude has been consistent even in Microsoft’s most secretive, internal documentation.

Today, Judge Jacqueline Scott Corley issued her decision on the Federal Trade Commission’s move for a preliminary injunction on the merger, which would have stopped it from completing as scheduled next week until it could be brought to a hearing in August. And in that ruling, she revealed that Xbox is remarkably consistent, even internally, about its Call of Duty plans:

“[T]here are no internal documents, emails, or chats contradicting Microsoft’s stated intent not to make Call of Duty exclusive to Xbox consoles,” reads a section of the ruling. “Despite the completion of extensive discovery in the FTC administrative proceeding, including production of nearly 1 million documents and 30 depositions, the FTC has not identified a single document which contradicts Microsoft’s publicly-stated commitment to make Call of Duty available on PlayStation (and Nintendo Switch).”

Xbox representatives have been emphatic in public on this point, with Xbox head Phil Spencer going so far as to testify under oath last month that he would not take Call of Duty away from PlayStation. But often, companies will say one thing publicly and another thing privately, so it’s surprising that in nearly one million pieces of internal documentation (including emails and internal chats) that legally had to be turned over to the court for this case, not once did any Xbox executive say anything that could have been interpreted as a plan to take Call of Duty exclusive. Which likely explains why Sony Interactive Entertainment head Jim Ryan was so confident in his own internal communications that “we will continue to see Call of Duty on PlayStation for many years to come.”

Judge Corley denied the FTC’s requested injunction, clearing the way for the Xbox-Activision deal to go through next week. A hearing will still take place in August, but the FTC faces an even more challenging battle to fight the merger given that it will now likely have to undo an already-merged company if it finds the deal to be anti-competitive. Meanwhile, in the UK, the Competition and Markets Authority seems poised to reach an agreement with Microsoft that would clear up its own concerns about cloud gaming.

Last month, both parties went to court, the trial lasted four days, and several reveals were made. From court documents revealing a shortlist of game developers Xbox was interested in acquiring to fill content gaps to PlayStation boss Jim Ryan admitting that he does not find Starfield being an Xbox console exclusive being “anti-competitive,” and Microsoft CEO Satya Nadella saying he “has no love” for console exclusives.

If you want to learn more about what when on during the four-day trial. Check out a full recap of the hearing. If you want a breakdown of each individual day, check out our analysis pieces, where we dissect every day of the trial.

Rebekah Valentine is a senior reporter for IGN. You can find her on Twitter @duckvalentine.

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