Thank you! That document is exactly the sort of thing I was looking for. Just realized (after writing most of this comment) that it’s for Wolfire and not Vicki Shotbolt’s case, but the commentary’s still relevant, I think.
There’s enough there that they may have a legitimate case, but there’s also a lot that is, as far as I know, completely acceptable for Valve to do. The specific items you listed, as well as a couple before / after them, are the most promising, IMO, but even so, there are a couple different counter-arguments that I could see Valve making.
The first counter-argument would be that the comments in 204-205 were in the context of publishers who had already received Steam keys for the games in question and did not apply to games where the publisher had not received Steam keys.
The second counter-argument would be that Tom Giardino was not speaking to Valve’s actual policy and/or that he was making empty threats that he didn’t have the power to enforce. Tom’s still with Valve (according to www.valvesoftware.com/en/people) so they wouldn’t be able to show that he was fired for giving publishers incorrect information, but it would be feasible for them to have record of him having gotten disciplinary action or something along those lines. Without something like that it’s much less credible stance, but not unbelievable - they’d basically have to be admitting negligence since this is a record of the actions of a representative their company. My gut says they were at least complicit.
200 says Valve “insisted” a publisher change their price on the Discord Store but doesn’t indicate any enforcement action was taken. At first glance, 209 appeared to apply, but it, too, involves the sale of Steam keys. 230 goes into a bit more detail about 209.
I read through the filing and still don’t see any instances of a game being delisted because it was being sold for cheaper elsewhere, when Steam keys weren’t in play. A lack of enforcement action against publishers not using Steam keys who set a different price in another storefront would go a long way toward showing that Valve’s policy was only relevant when the publishers were using Steam keys.
In either case, Valve will need to make the argument that it is not anti-competitive to require publishers to agree to these terms when requesting free Steam keys.
The arguments regarding DLC exclusivity (172-184) are another area where Valve might be found to be anti-competitive. That said, I don’t think exclusive DLCs benefit consumers and I would expect Valve to argue that the intent and impact of requiring DLC be published on their platform is for consumers’ benefit. I think proving something here would be dependent on the pricing angle.
I still think Valve could argue that the intent and impact of their pricing decisions are to the benefit of consumers. The specific enforcement actions brought up were all in relation to the price of Steam keys on third-party storefronts, which I think will be held to a much lower standard than restricting the price of the game on other platforms. After all, the benefits of Steam keys aren’t intrinsic to Steam, and other platforms are free to offer a similar benefit to game publishers.
In 191, the plaintiff shows that a publisher could set the price on a rival platform at 20% less and make more profit than on Steam. However, there aren’t any examples of enforcement actions where the discount on a rival platform did not exceed a 20% difference. Ultimately, if they don’t have at least that - optimally for a game whose publisher didn’t ever receive free Steam keys - the singular statement of one of their representatives might be the only concrete evidence they have. And at that point, the argument that Tom was just making empty threats has a lot more weight.