No Clear Victor
The United States District Court for the District of Columbia (Chief Judge Boasberg) has denied full summary judgment to both Meta and the FTC in antitrust litigation
How times have changed. Not so long ago, a company called Facebook so dominated the provision of personal social networking services that a movie charting its rise was entitled simply “The Social Network.” Fifteen years later — and four years into the Federal Trade Commission’s antitrust suit against it — that company (now called Meta) argues that the market with which it was once nearly synonymous does not even exist. Gazing across an online landscape teeming with companies catering to every conceivable interest, Meta sees a bloody battle for users’ time and attention in which its products face withering competition. After over two years of discovery, it now moves for summary judgment on the FTC’s claims that it violated Section 2 of the Sherman Act through its acquisitions of Instagram and WhatsApp. The FTC opposes that Motion and has itself cross-filed for partial summary judgment on certain of Meta’s affirmative defenses. Both parties have buttressed their filings with a voluminous evidentiary record, mere summaries of which span thousands of pages.
Although the field of the parties’ combat has shrunk somewhat over time, the FTC’s story has remained “essentially unchanged.” FTC v. Facebook, Inc. (Facebook II), 581 F. Supp. 3d 34, 40 (D.D.C. 2022). Armed now with experts and evidence, Plaintiff continues to argue that a relevant antitrust market exists for personal social-networking (PSN) services and that, since at least 2012, Meta has enjoyed monopoly power in that market. The Commission further contends that Defendant unlawfully maintained that monopoly by acquiring two actual or nascent competitors, Instagram and WhatsApp, that posed a threat to its dominance at the time. Meta retorts that PSN services do not constitute a relevant antitrust market over which the company exercises any degree of monopoly power and that no other direct effects of monopoly power have been shown. Even if it did possess such power, Meta denies that its Instagram and WhatsApp acquisitions were anticompetitive, especially considering the significant investments it has since made to improve and grow both applications.
In the end, while the parties’ legal jousting is both impressive and comprehensive, it leaves no clear victor. This case must go to trial. Under the forgiving summary-judgment standard, the FTC has put forward evidence sufficient for a reasonable factfinder to rule in its favor. Prevailing here, however, does not obscure the fact that the Commission faces hard questions about whether its claims can hold up in the crucible of trial. Indeed, its positions at times strain this country’s creaking antitrust precedents to their limits. All the same, except for Count II, which the Court previously found lacking but could not dismiss, and one of Meta’s defenses, for which Defendant has not proffered sufficient evidence to survive summary judgment, the Court will deny Meta’s Motion for Summary Judgment and the FTC’s CrossMotion for Partial Summary Judgment.
(Mike Frisch)