Amici Throw Weight Behind Facebook in State AGs’ Antitrust Appeal

On Monday, several amici curiae pledged their support for Facebook’s cause in the antitrust case filed by nearly all state attorneys general in 2020. The friends-of-the-court briefs come shortly after Facebook filed its opposition with the D.C. Circuit Court of Appeals.

Previously, the district court dismissed the states’ federal antitrust case for untimeliness and implausibility. They appealed the decision and filed their opening brief in January.

Earlier this month, Facebook opposed the appeal. The company argued that the district court’s application of the equitable doctrine of laches was well-founded. Furthermore, it said that allegations about its past policies and supposed refusals to deal were insufficient to state a cognizable antitrust claim for monopolization.

One brief, filed jointly by the Chamber of Commerce of the United States of America, the Computer & Communications Industry Association, and Business Roundtable, argued that the district court correctly dismissed the states’ case.  

The three amici explained that their interest in the appeal stems from two concerns. First, they said that their member companies rely on the doctrine of laches to defend against unreasonably late claims. “The availability of that defense takes on increased importance in contexts like this one, where States seek to sanction businesses based on long-ago transactions that regulators approved at the time,” the brief said.

In addition, the filing warned that the states’ theory of liability “seriously threatens the ability of businesses to freely and efficiently operate.” The amici argued that an extension of refusal to deal liability would stifle innovation and that the attendant risk of liability would deter pro-competitive conduct, thereby undermining consumer welfare.

Other briefs in support of Facebook came from Washington Legal Foundation and the Information Technology & Innovation Foundation, which argued that the court correctly dismissed the monopolization claim based on a proper characterization of Supreme Court precedent. Yet another, one of several filed by economics and law professors, asserted that Facebook’s wild success was not the result of punishable conduct.

The Chamber of Commerce, the Computer & Communications Industry Association, and Business Roundtable are represented by Jones Day in addition to their own counsel. In this appeal and the FTC case proceeding before the district court, Facebook is represented by Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C.