Facebook Questions Advertisers’ Antitrust Claims in Second MTD; JPML Consolidates Case with Google Advertising Antitrust MDL

After a San Jose, California court refused to dismiss antitrust allegations against Facebook in January, the company has fired back at the advertiser plaintiffs’ amended complaint, arguing that their refreshed arguments fare no better than those previously tossed.

The case, a consolidated action, argues that companies and individuals that purchased Facebook advertising space overpaid for services due to Facebook’s illegal monopolization of the relevant social media advertising markets. A second set of plaintiffs, consumers, allege that Facebook made false claims about its data privacy practices, deceiving consumers, depriving them of the right to control their privacy, and ultimately furthering the social media platform’s dominance.

In the court’s mid-January dismissal opinion, the plaintiffs’ allegations partly withstood Facebook’s arguments undercutting their antitrust standing and the degree to which they had pleaded the relevant claim elements. The 110-page opinion found that both sets of plaintiffs pleaded that Facebook has monopoly power in the relevant markets, but dismissed a chunk of their claims as untimely.

Thereafter, several events transpired. First, the advertisers filed an amended complaint that abandoned some of their previously dismissed legal theories, but continued with the three causes of action: monopolization, attempted monopolization, and restraint of trade. Second, the case was reassigned from Judge Lucy H. Koh to Judge James Donato.

Third, Facebook answered the consumers’ complaint. Finally, the Judicial Panel on Multidistrict Litigation issued an order consolidating the advertisers’ case with In re: Google Digital Advertising Antitrust Litigation proceeding in the Southern District of New York. It remanded the consumers’ case to the Northern District of California. 

In this week’s motion, Facebook pressed arguments that the advertiser plaintiffs’ claims related to Facebook’s purported “Copy, Acquire, Kill,” strategy it applied to rivals is still untimely because there is no viable link between supposed ongoing violations and acts commissioned under the previous strategy. The motion attacks four aspects of the plaintiffs’ revised claims, concluding that the untolled four-year statute of limitations bars them.

The company also argued for the dismissal of the monopolization claims levied against it. “Plaintiffs do not plausibly allege any cognizable anticompetitive effect from the challenged conduct, let alone one that caused them antitrust injury,” the motion said. 

In one instance, Facebook asserted that allegations that its machine learning model was anticompetitive failed in view of the plaintiffs’ own admission that it improved Facebook’s ability to target users for advertisers. Contrary to their arguments, the plaintiffs’ own allegations “assert product improvement, to Plaintiffs’ benefit, and thus presumptively foreclose the claim as a matter of law,” the motion said.

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.