Facebook Fires Back at FTC’s Amended Antitrust Complaint

In a 55-page filing, Facebook Inc. argues that the court’s initial dismissal ruling was correct and that the Federal Trade Commission’s (FTC) revisions do not edge its antitrust claims into the realm of plausibility. Monday’s filing also asserts that the FTC’s 3-2 vote to issue the amended complaint was invalid due to Chairwoman Lina Khan’s publicly demonstrated bias against the social media giant.

The motion to dismiss the amended complaint with prejudice contends that the federal agency has again failed to allege monopoly power, a flaw that doomed its first complaint. The FTC “still pleads no facts plausibly establishing that Facebook has, and at all relevant times had, monopoly power – the power to raise price or restrict output – in what the Court characterized as the ‘idiosyncratically drawn’ ‘Personal Social Networking Services’ (PSNS) market,” Facebook says.

The company further contends that the FTC added no new facts concerning market share, which it initially pegged at 60% of the PSNS market,  but “merely ratchets up its groundless projection to 70% or even 80%, replacing unsupported assertion with ‘arguendo’ assumption.” The defendant explains that the FTC resorts to these tactics because, reportedly, “no reliable data exists for its contorted PSNS market, which is a litigation-driven fiction at odds with the commercial reality of intense competition with surging rivals like TikTok and scores of other attractive options for consumers.”

In addition, Facebook now argues that the FTC’s vote authorizing the amended complaint was invalid because Chairwoman Lina Khan should have been recused from the proceeding, but was not after the FTC rejected Facebook’s July petition. According to the defendant, Khan’s authorship of the House Judiciary Subcommittee report asserting that the company committed Sherman Act violations and other “ad hominem public charges,” require that she sit this proceeding out.

As such, Facebook asks the court to find the FTC’s authorization of the complaint invalid and dismiss the lawsuit, or in the alternative, remand to the FTC to resolve the recusal issue. The FTC’s opposition is due by November 17.

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