Antitrust Law

FTC's revised antitrust suit against Facebook survives motion to dismiss

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A federal judge in Washington, D.C., on Tuesday allowed the Federal Trade Commission to proceed with its revised antitrust lawsuit against Facebook.

U.S. District Judge James Boasberg of the District of Columbia had tossed the FTC’s first suit in June 2021 because it lacked facts supporting its assertion that Facebook had monopoly power.

“Second time lucky?” Boasberg wrote in his latest opinion before allowing the agency’s suit to proceed on one of two counts.

The FTC may now seek to prove that Facebook has exercised monopoly power in the market for personal social networking services through anti-competitive conduct—specifically, its acquisitions of Instagram and WhatsApp.

Boasberg did not allow a claim, however, that Facebook policies prevented interoperability between its platform and apps that could become competitors. Boasberg said Facebook had abandoned the policies in 2018.

Boasberg warned that the FTC still has a long road ahead.

“Ultimately, whether the FTC will be able to prove its case and prevail at summary judgment and trial is anyone’s guess,” Boasberg wrote “The court declines to engage in such speculation and simply concludes that at this motion-to-dismiss stage, where the FTC’s allegations are treated as true, the agency has stated a plausible claim for relief.”

The National Law Journal, the Washington Post, NPR and the New York Times are among the publications with coverage of Boasberg’s Jan. 11 decision.

The publications cited this statement by Chris Sgro, a spokesman for Facebook parent company Meta: “We’re confident the evidence will reveal the fundamental weakness of the claims. Our investments in Instagram and WhatsApp transformed them into what they are today. They have been good for competition and good for the people and businesses that choose to use our products.”

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