Consumers and Advertisers Oppose Facebook’s MTD in Antitrust Litigation

On June 17, the plaintiffs contending that Facebook Inc. illegally monopolizes the social network and social media markets with its products, Facebook, Instagram, Messenger, and WhatsApp, responded to Facebook’s motion to dismiss their consolidated complaint. The plaintiffs claimed that because Facebook is “unhappy” about the facts alleged, it wrongly requests that the court “skip discovery, expert reports, and a trial, and reject these detailed allegations” as implausible.

The users and advertisers, the latter of whom buy advertising directly from Facebook, put forward several arguments in support of their complaint. First, they assert that their federal monopolization claims are not barred by the statute of limitations. Not only do they allege actionable conduct inside the four-year limitations period, but they also allege facts that establish tolling past that period, such as those underlying their fraudulent concealment theory.

Both plaintiff groups then asserted that their proffered market definitions are well-defined, accepted, and that they address substitutes. For example, the advertiser plaintiffs contend that the social advertising market “has been recognized in other contexts by Facebook itself and its salience is confirmed by Facebook’s ability to raise ad prices without competitive pressure from other forms of online advertising.”

The opposition also reiterates arguments that Facebook obtained and maintains monopoly power by anticompetitive means, including through its “serial acquisition conduct.” The defendant’s allegation that the consumer complaint is scant on  detail “cherry-picks specific allegations as insufficient, but ignores the facts that complete the picture,” the plaintiffs aver.

Next, the Facebook users and advertisers assert that they have pleaded antitrust standing and injury. The users combat Facebook’s argument that only a plaintiff who suffered financial loss can recover, and in turn, the users cannot because Facebook is offered free of charge. Here, “Facebook misstates the law, runs from key factual allegations, and ignores economic realities,” the plaintiffs rebut. 

Additionally, the advertisers argued that they have shown “canonical antitrust injury,” by setting forth facts demonstrating that they paid supracompetitive prices to Facebook in the restrained market. Finally, the plaintiffs request leave to amend to cure deficiencies, should the court dismiss any portions of the consumer or advertiser complaints.

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.