Dismissal Briefing Ends in Facebook User and Advertiser Antitrust Class Action

Facebook Inc. has had the last word in its bid to dismiss the case over illegal monopolization and exclusionary conduct. Wednesday’s reply brief comes shortly after the consumer and advertiser plaintiffs filed a supplemental brief to distinguish their claims from those brought by the Federal Trade Commission and dismissed last week.

Facebook opened by reminding Judge Lucy H. Koh that four other judges have rejected similar allegations, and there are plenty of reasons why she should follow suit. It contended that the plaintiffs’ federal monopolization claims are time barred and neither the continuing violation doctrine nor fraudulent concealment can save them.

The defendant next argued that the asserted market definition falls short of plausible. The advertiser plaintiffs, it said, cannot rely on a “social advertising” submarket because established principles dictate that a product’s unique features do not automatically signify that it independently comprises a market or sub-market. Similarly, Facebook argued that the users fail to allege a relevant market or monopoly power as they have neither taken into account cross-elasticity of demand, nor stated what products consumers view as substitutable.

Facebook also batted down the plaintiffs’ exclusionary conduct arguments as inviable. For example, the users’ deception theory is not pleaded with particularity as required by the federal fraud pleading standard, the defendant claims. Finally, Facebook questioned the plaintiffs’ antitrust standing, contending that they have not alleged the requisite injury to bring certain federal claims.

The motion to dismiss hearing is scheduled for July 15 before Judge Koh in San Jose, California.

Interim counsel for the advertiser class is Bathaee Dunne LLP , Scott + Scott Attorneys at Law LLP, Ahdoot & Wolfson PC, and Levin Sedran & Berman LLP.

Interim counsel for the consumer class is Quinn Emanuel Urquhart & Sullivan LLP, Hagens Berman Sobol Shapiro LLP, Keller Lenkner LLC, and Lockridge Grindal Nauen P.L.L.P. 

Facebook is represented by Wilmer Cutler Pickering Hale and Dorr.