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Opposition to Relation of Facebook Antitrust Lawsuits Into Plaintiff-Related Categories

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Bangkok, Thailand - July 13, 2019 : iPhone user touching Facebook logo on iPhone screen to open the app.

Facebook has had a series of antitrust lawsuits filed against it, seven of which are in the Northern District of California. Facebook users in one of these lawsuits filed a motion for administrative relief to consider whether consumer cases should be related, separating seven suits into two categories based on the plaintiffs: consumers in one category and app developers and advertisers in another category. In response, on Wednesday, Facebook filed an opposition to the motion and a plaintiff in another antitrust lawsuit against Facebook filed an opposition in response to the motion on Thursday in the Northern District of California.

The Facebook user plaintiffs in the Klein lawsuit claimed that Facebook has monopolized the Social Network and Social Media Markets and challenged Facebook’s acquisitions of Instagram and WhatsApp and the purported restrictions on app developers’ use of Facebook’s API. According to Facebook, the Klein plaintiffs have attempted to avoid relating their lawsuit to the Reveal Chat lawsuit against Facebook, despite Facebook’s claim that the allegations in both lawsuits are similar. In fact, Facebook argued that the Facebook user “Complaint levels these allegations in scores of paragraphs quoted verbatim from the operative Complaint in Reveal Chat…Thus, the Klein plaintiffs should not be able to avoid relation with Reveal Chat.” Facebook added that “relitigating the Reveal Chat motion in the guise of a motion to relate different cases is procedurally improper, and this Court should not rule on plaintiffs’ motion, unless and until Judge Freeman denies Facebook’s pending motions to relate Klein, Kupcho, Dames, and Steinberg to Reveal Chat.” Facebook claimed that the Klein plaintiffs’ claim that their lawsuit is not related to Reveal Chat and that the seven antitrust lawsuits “should be grouped into two or possibly three categories,” according to Facebook, seems to “rest on two fundamentally incorrect premises.”

The first premise is that the plaintiffs claim that the lawsuits are unrelated because the plaintiffs in some lawsuits are consumers, while the plaintiffs in other lawsuits are app developers or advertisers. Facebook noted that the latter plaintiff category are also likely Facebook consumers themselves. Additionally, Facebook stated that the plaintiffs’ “position finds no support in the law,” pointing to Pepper v. Apple, where the court found that although the “‘plaintiffs differ and their relationship to the defendant also differs…, each case stems from the use of the exact same technology and the economics regarding that same technology.’” Thus, pursuant to Local Rule 3-12(a)(1), which “‘allows for relation of actions even where plaintiff classes differ, including classes of consumers,’ ‘content creators,’ and, here, app developers and advertisers,” Facebook argued that these lawsuits should be related.

The second premise is that the Klein plaintiffs “assert that some of the cases are unrelated simply because they also challenge other conduct in addition to the Instagram and WhatsApp acquisitions and Facebook’s Platform policies.” Facebook proffered that this argument is also “without support in law or logic.” Facebook added that this would also burden the judicial system by having “two or potentially three different Judges in this District to preside over separate cases…just because some cases have an additional (but still related) theory of competitive effects.” Additionally, Facebook noted that the government plaintiffs that filed lawsuits in the District of Columbia District Court have noted that these lawsuits and Reveal Chat are all related. Consequently, Facebook argued that these lawsuits are related, and as such the court should not rule on the Klein plaintiffs’ instant motion unless and until Judge Freeman denies Facebook’s pending motion to relate these lawsuits.

Meanwhile, plaintiff Kupcho, the plaintiff in a lawsuit that Facebook argued should be related, claimed that the Klein plaintiffs’ “motion to relate is premature given the pendency of a motion to relate in the Real Chat matter.” Specifically, Facebook’s effort to relate the lawsuits that it mentioned in its opposition, namely, relating Reveal Chat to Klein, Kupcho, Dames, and Steinberg. Plaintiff Kupcho contended that the court’s decision on the pending motion “may grant the relief sought in the Klein Motion.” However, Kupcho “does not generally oppose the relation or any necessary coordination among the cases.”

Facebook is represented by Wilmer Cutler Pickering Hale and Dorr LLP. Plaintiff Kupcho is represented by Hagens Berman Sobol Shapiro LLP and Lockridge Grindal Nauen P.L.L.P.

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