Advertiser Plaintiffs Oppose Dismissal of Amended Complaint in Facebook Antitrust Suit

A putative class of businesses who purchased advertisements from defendant Meta Platforms Inc. says that the allegations in its recently-filed first amended complaint leave the court with no serious questions about the timeliness or plausibility of its antitrust claims. As such, the plaintiffs oppose Meta’s second bid to dismiss the overcharge case, and argue that the court must see through Meta’s flawed Rule 12(b)(6) and punctuality arguments.

The Northern District of California court overseeing the case issued an opinion earlier this year finding that the advertiser plaintiffs as well as the consumer plaintiffs, who allege that Facebook made false claims about its data privacy practices, pleaded that Facebook has monopoly power in the relevant markets. However, because some claims were premised on events taking place before the four-year statute of limitations, the court dismissed a substantial subset of both the advertisers and consumers’ claims.

The advertiser plaintiffs filed a revised complaint at the end of the February, which Meta moved to dismiss last month. In its motion, the company said that the repleaded allegations do not change the court’s prior ruling on timeliness and they still fail to plead anticompetitive effect and injury as to the plaintiffs’ monopolization claims.

The plaintiffs’ redacted filing counters that Meta’s legal contentions are baseless, and what remains, are factual questions for summary judgment and trial. Further, the plaintiffs contend that “Meta’s motion misstates the Court’s previous ruling as to the scope of leave to amend; makes meritless and incoherent timeliness arguments; and ignores and dismembers the FAC’s allegations of anticompetitive conduct by Meta in favor of blindered strawmen.”

The plaintiffs point to four aspects of their amended filing which purportedly bring their claims within the four-year limitations period. These include allegedly anticompetitive market division and data sharing agreements with eBay, Netflix, and Foursquare and Meta’s leveraging of surreptitiously obtained Onavo data and spyware “to surveil and target rivals and their users, including by using this deceptively obtained data to train Meta’s AI and machine learning targeting systems.”

The plaintiffs also reiterate that the complaint describes in detail how each of these overt acts was “indeed anticompetitive —i.e., proscribed by Sherman Act § 2 as violating the rule of reason— and injured the Advertiser Plaintiffs, including by contributing to inflated advertising prices in the Social Advertising Market.”

In view of the court’s previous conclusion that the social advertising market was adequately pleaded as was the plaintiffs’ Sherman Act Section 1 and 2 claims based on Meta’s anticompetitive agreement with Google, the court should have no trouble concluding that the amended pleading now states a viable monopolization claim based on its other “five categories of exclusionary conduct—all timely on their face,” the opposition says.

Interim counsel for the advertiser class is Bathaee Dunne LLP , Scott + Scott Attorneys at Law LLP, Ahdoot & Wolfson PC, and Levin Sedran & Berman LLP. Facebook is represented by Wilmer Cutler Pickering Hale and Dorr.