The veteran trial lawyer had just over a week from the Federal Trade Commission’s decision to seek an injunction to block the deal to implement a trial strategy and prep witnesses — including Activision Chief Executive Officer Bobby Kotick. Shortly after the trial started on June 22, Wilkinson used a white board to debunk an FTC witness’s claim that the deal would push 20% of a rival’s users to Microsoft’s Xbox.
The long hours paid off. US District Judge Jacqueline Scott Corley cited both Kotick’s testimony and the math-based take down of the government witness in her July 11 ruling rejecting the FTC’s request to block the deal.
“That’s the value of trial lawyers, we think of the narrative and the story and how you weave it together,” the 60-year-old Wilkinson said in an interview. “Once it was over, it was exhausting but extremely rewarding.”
One remaining hurdle for the Microsoft deal lies with UK regulators. The Competition and Markets Authority on Tuesday gave the deal a new chance at approval after the companies submitted a revised proposal on streaming rights for Activision games. While the FTC is appealing Microsoft’s trial win, the appeal doesn’t stand in the way of the deal closing.
And by beating the FTC, Wilkinson helped Microsoft get past a crucial stumbling block on its home turf as the Redmond, Washington-based company races to close the purchase before a looming October 18 deadline. Activision’s Kotick had said in June that the game maker would be forced to abandon the deal if the agency won the case.
The 10-days of trial prep and five-day trial were the culmination of months of work on the case. Microsoft brought in Wilkinson, a name partner at Washington DC-based Wilkinson Stekloff, shortly after the deal was announced in January 2022. While the FTC first challenged the deal in December 2022, the agency didn’t seek a federal court order blocking the merger until June.
“In terms of the unique preparation, I’ve never heard of a trial of that magnitude where you only had 10 days notice,” she said, adding that her team managed to get the documents and evidence to San Francisco, get the executives ready to testify and try the case during that span.
Her trial team presented an uncomplicated chronology of events and developments to show Microsoft had taken steps to address the agency’s concerns that the acquisition would thwart competition, such as the company’s promise to keep Activision’s top games on rival Sony Corp. PlayStation consoles.
It has to be done in a way that’s “compelling and reinforces your themes,” said Wilkinson, who has an undergraduate degree from Princeton University and a law degree from the University of Virginia.
‘A Lot of Comfort’
Coming into the case “she knew nothing about video games, nothing about the industry and within a week had an undeniable grasp” of it all, Kotick said. “She is incredibly capable of distilling complex facts into an easy to understand argument.”
The daughter of a US Navy submarine captain who herself served in the Army’s Judge Advocate General Corps, Wilkinson rose to fame as a Justice Department attorney in the late 1990s, winning the death sentence against Oklahoma City bomber Timothy McVeigh. She was also Fannie Mae’s general counsel from 2006 to 2008.
Among the handful of losses she’s had over a 36-year career was a $500 million jury verdict her client Facebook Inc. was ordered to pay ZeniMax Media Inc. for breach of contract and copyright infringement. The award was cut in half by a judge in 2018 and the two companies settled while the decision was appealed.
Having a lead female attorney advising or litigating for a company on merger and acquisition activity is rare. A study by the UC Davis School of Law shows only about 1 out of 10 legal advisors for M&A were women in almost 700 deals from 2014 to 2020. An American Bar Association study found women were lead counsel in high-stakes antitrust cases only 12% of the time.
The Microsoft fight isn’t the first time Wilkinson has helped a client tackle the FTC. She was also the lead lawyer for tobacco giant Altria Group Inc., which was sued in April 2020 by the agency over its $12.8 billion investment in e-cigarette maker Juul. The FTC’s own administrative judge sided with the companies before the case was dismissed in June.
Wilkinson, whose husband is former “Meet the Press” host David Gregory, has also been involved in high-stakes political litigation. She was retained by Justice Brett Kavanaugh who was accused of sexual abuse in his nomination hearing in 2018. She also defended Judge Emmett Sullivan whose decision to probe the Justice Department’s move to dismiss a case against former Trump national security adviser Michael Flynn was questioned by a federal appeals court in 2020.
But the Microsoft case had an unusual twist. Soon after Wilkinson was hired, her team set up consoles in her firm’s DC office and paralegals played video game coaches to lawyers in the case. That was so they’d have first-hand experience on popular games like “Candy Crush,” “Call of Duty” and even necromancers from the fantasy game “Diablo” that were discussed in court.
The paralegals “loved it,” she said. “We would do ‘teach-ins’ — that’s what we called them — where they would teach us and we would talk about, how it worked, how do you access the games, how do you play cross platform.”
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