Briefing Concludes in State AGs’ Antitrust Appeal Against Facebook

A 52-page reply filed by the attorneys general of almost all 50 states pressed the D.C. Circuit to let their antitrust case against Facebook proceed. Last week’s filing primarily addressed the trial court’s dismissal based on its application of the doctrine of laches and finding the states’ claims unreasonably tardy.

In January, the attorneys general urged the appellate court to override their case’s dismissal with prejudice. Facebook fired back, asserting that the states’ claims were untimely and the challenged policies were lawful when in effect. In March, amici chimed in on Facebook’s behalf, backing its laches’ defense and arguing that if accepted, the states’ theory of liability would stretch antitrust law to impermissible extremes.

The states’ reply brief opened by noting that Facebook’s own CEO said that the company sought to “‘build a competitive moat’ around its monopoly.” The attorneys general then highlighted their role protecting the public from abuses of competition and urged that just as laches does not apply to the federal government, it should not apply to them.

The filing argued that courts have recognized states’ rights to sue in parens patriae under federal law, citing a District of Massachusetts case, and also pointing to suits brought by states under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). A footnote explained that like the Clayton Act, CERCLA permits any “person” to seek recovery, and “person” is defined to include states. The argument continued that CERCLA, just like the Clayton Act, does not and need not create a separate or exclusive cause of action for states.

Secondarily, the states asserted that even if laches can apply to state-filed cases, it does not in this situation. “The facts alleged do not prove unreasonable delay by the States or undue prejudice to Facebook, particularly when giving due weight in the equitable analysis to the States’ vital role protecting the public interest,” the reply said.

Oral argument has not yet been scheduled.

Facebook is represented by Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C.