Facebook Files Opposition Brief in State AGs’ Antitrust Appeal Before D.C. Circuit

On Monday, Facebook, now Meta Platforms Inc., argued that a case brought by state attorneys general was correctly dismissed by Judge James E. Boasberg last June. The company’s 76-page brief asserts that the states’ claims are barred as untimely and the policies they challenged were lawful when in effect.

The plaintiffs are a coalition of nearly all 50 state attorneys general plus those of the District of Columbia and Guam. Similar to the Federal Trade Commission’s case against Facebook that recently survived dismissal, they allege that Facebook violated the nation’s antitrust laws for consummating mergers that entrenched its market dominance in the personal social networking services market while simultaneously squashing fledgling rivals.

In their January-filed opening brief, the coalition argued that the court was wrong to find their Clayton Act injunctive relief claim time-barred. In addition to legal arguments as to why the doctrine of laches does not apply, the brief said that “[b]arring the States from suit now strips them of critical law-enforcement authority and denies them the flexibility they need to effectively protect consumers and the public interest.”

The brief also made light of multiple, apparent errors committed by the district court in dismissing the remainder of the states’ monopolization claim “based on Facebook’s efforts to ‘bury’ potential competitors through control of its platform.”

This week, Facebook said the plaintiffs’ renewed arguments fare no better than their previous. The company reiterated that the states’ injunctive relief claim was brought too late, prejudicing Facebook. The brief argued that in contrast to federal enforcers, Congress did not “designate the states as sovereign enforcers of federal antitrust law,” and thus “they, like all non-federal parties, may not unreasonably delay bringing claims.”

The defendant-appellee then asserted that its former policies limiting “the way that developers could use access to platform to support or create rival products and services” were permissible under Supreme Court precedent as the district court correctly found. Facebook also urged Judge Boasberg’s ultimate conclusion that “claims regarding long-ago applications of the former policy stated no cognizable claim because the States did not allege that injunctive relief could plausibly remedy discrete incidents that occurred and ended years ago.”

Later this month, amicus briefs in support of Facebook are due. Numerous amici filed on behalf of the state attorneys’ general in January, including the American Antitrust Institute and the federal government

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