30/6/2021 Facebook Antitrust Cases Brought by FTC and States Are Thrown Out - The New York Times

https://www.nytimes.com/2021/06/28/technology/facebook-ftc-lawsuit.html

Judge Throws Out 2 Antitrust Cases Against Facebook

The decisions were a major blow to attempts to rein in Big Tech. The judge said one of the complaints, from the Federal Trade
Commission, lacked facts and gave the agency 30 days to refile it.

By Cecilia Kang

Published June 28, 2021 Updated June 29, 2021

WASHINGTON — In a stunning setback to regulators’ efforts to break up Facebook, a federal judge on Monday threw out antitrust
lawsuits brought against the company by the Federal Trade Commission and more than 40 states.

The judge eviscerated one of the federal government’s core arguments, that Facebook holds a monopoly over social networking,
saying prosecutors had failed to provide enough facts to back up that claim. And he said the states had waited too long to bring their
case, which centers on deals made in 2012 and 2014.

The judge said the F.T.C. could try again within 30 days with more detail, but he suggested that the agency faced steep challenges.

The rulings were a major blow to attempts to rein in Big Tech. In Congress, legislators pointed to the decisions as proof that century-
old antitrust laws needed updating for the internet sector.

“This really stings,” said William E. Kovacic, a former chairman of the Federal Trade Commission. “This is a reminder to those who
have wanted a dramatic, sweeping litigation campaign to take on Big Tech that there’s nothing easy about it, because the courts have
a different view of the antitrust system.”

Representatives for the F.T.C. and Letitia James, the New York attorney general, who led the states’ case, said they were reviewing
the judge’s decision and considering their legal options.

Christopher Sgro, a spokesman for Facebook, said: “We are pleased that today’s decisions recognize the defects in the government
complaints filed against Facebook. We compete fairly every day to earn people’s time and attention and will continue to deliver great
products for the people and businesses that use our services.”

The news pushed Facebook’s stock up 4.2 percent, and the company passed $1 trillion in market capitalization for the first time. It is
one of only half a dozen companies to reach such a valuation.

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Congress, President Biden and many states have made weakening the grip of Amazon, Apple, Facebook and Google a high priority.
Mr. Biden has installed critics of the technology giants in key regulatory roles, including Lina Khan as chair of the F.T.C., and he is
expected to issue broad mandates this week for federal agencies to address corporate concentration across the economy. Ms. Khan’s
first major task as chair will be to rewrite the Facebook lawsuit to address the judge’s criticisms.

Courts have narrowed interpretations of antitrust laws over the years, making government cases difficult to win. Last week, the
House Judiciary Committee advanced six bills that would overhaul antitrust laws, with the goal of loosening the influence that the big
companies have over wide swaths of the economy.

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30/6/2021 Facebook Antitrust Cases Brought by FTC and States Are Thrown Out - The New York Times

“Today’s development in the F.T.C.’s case against Facebook shows that antitrust reform is urgently needed,” said Representative Ken
Buck, a Republican from Colorado and a co-sponsor of the antitrust bills. “Congress needs to provide additional tools and resources to
our antitrust enforcers to go after Big Tech companies engaging in anticompetitive conduct.”

Senator Josh Hawley, Republican of Missouri and a critic of Big Tech, said on Twitter that the court had acknowledged Facebook’s
“massive market power but essentially shrugged its shoulders.”

Mark Zuckerberg, the chief executive of Facebook, testifying before Congress last year.
Facebook said on Monday that it competed to earn people’s attention. Pool photo by Mandel
Ngan

The lawsuits by the states and the Federal Trade Commission argued that Facebook’s acquisitions of Instagram for $1 billion in 2012
and WhatsApp for $19 billion two years later squashed competition in social networking. The regulators argued that Facebook should
break off the two apps and that new restrictions should apply to the company on future deals. Those are some of the most severe
penalties that regulators can demand.

The F.T.C. was split on its decision to pursue the lawsuit. Its chairman at the time, Joseph J. Simons, a Republican appointed by
President Donald J. Trump, and the two Democratic commissioners voted in favor of the suit. The two remaining Republican
commissioners voted against it.

The state suit was signed by attorneys general from 46 states and the District of Columbia and Guam. Alabama, Georgia, South
Carolina and South Dakota did not join the case.

Facebook asked the court to dismiss both suits in March. The company argued that it was continually challenged with competition,
including from new rivals such as TikTok. It also argued that the regulators had failed to prove how the services, which are free,
harmed consumers. The judge’s dismissal of both suits, so early in process, stunned regulators and Facebook executives.

The judge, James E. Boasberg of U.S. District Court for the District of Columbia, wondered why the states had waited so long to try to
unwind Facebook’s deals for Instagram and WhatsApp. Regulators had not tried to block them when they happened. He also rejected
allegations that Facebook squashed rival apps by blocking their ability to easily interact with the social media platform.

“Ultimately, this antitrust action is premised on public, high-profile conduct, nearly all of which occurred over six years ago,” he wrote,
“before the launch of the Apple Watch or Alexa or Periscope, when Kevin Durant still played for the Oklahoma City Thunder and
when Ebola was the virus dominating headlines.”

Judge Boasberg, who was appointed to his current post by President Barack Obama, said the F.T.C. did not sufficiently prove that
Facebook was a monopoly. He said the agency’s definition for social media was too vague, and in a reference to an interpretation of
antitrust law prevalent in courts that is anchored in consumer prices, he noted that the product was free.

“It is almost as if the agency expects the court to simply nod to the conventional wisdom that Facebook is a monopolist,” he wrote.
“After all, no one who hears the title of the 2010 film ‘The Social Network’ wonders which company it is about.”

But, he said, “‘monopoly power’ is a term of art under federal law with a precise economic meaning.”

Senator Richard Blumenthal, a Democrat of Connecticut and member of the Judiciary Committee, noted how internet companies
defied conventional market definitions.

“The court rejected the F.T.C.’s case because it wasn’t clear under our current antitrust laws that Facebook has a monopoly in online
networking — a flabbergasting assertion given Facebook’s firm grip over consumers, their data and the social media market,” Mr.
Blumenthal said.

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30/6/2021 Facebook Antitrust Cases Brought by FTC and States Are Thrown Out - The New York Times

The decision was a disappointment for the growing cohort of activists who have pushed regulators to move to break up the biggest
tech companies. Sarah Miller, the executive director of the antitrust think tank the American Economic Liberties Project, said she
hoped the states would appeal the dismissal and that the F.T.C. would file its case again. But she said the ruling underscored the need
for Congress to update the laws that police market concentration.

“The courts are going to need, ideally, some congressional guidance here, given that they have some outsized role in determining the
outcomes of antitrust cases,” Ms. Miller said. “Sometimes losses can be good because it can just reinforce that necessity, and we’re
hoping that this will serve to do that.”

Lawmakers in Congress are trying to overhaul antitrust with an eye toward the digital economy. But there is no guarantee that the
two parties will be able to agree on the specifics.

In Europe, courts have also provided companies a cushion against crackdown efforts by the authorities. Last year, a European Union
court struck down efforts by the bloc’s antitrust regulator to force Apple to pay 13 billion euros, about $15 billion at the time, in unpaid
taxes. In May, Amazon scored a victory against a similar order to repay €250 million in taxes.

In Germany, an effort by antitrust regulators to crack down on Facebook’s data-collection practices has been stalled in courts. And
Google has used court appeals to fight three judgments from E.U. regulators that it violated antitrust laws, which resulted in billions of
dollars in fines and orders to change some business practices. Google said it has complied with the judgments while the appeals are
underway.
David McCabe, Adam Satariano and Mike Isaac contributed reporting.

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