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I think this is a good TLDR from WSJ: > Judge Boasberg said the FTC’s lawsuit was “legally insufficient” because it didn’t plead enough allegations to support

by kyrra 5y ago

I think this is a good TLDR from WSJ: > Judge Boasberg said the FTC’s lawsuit was “legally insufficient” because it didn’t plead enough allegations to support monopolization claims against Facebook. The judge, however, said the commission can try again and gave it 30 days to attempt to file an amended lawsuit.

granzymes 5y ago
From the opinion, internal citations omitted: > The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims — namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services. The Complaint contains nothing on that score save the naked allegation that the company has had and still has a “dominant share of th[at] market (in excess of 60%).” Such an unsupported assertion might (barely) suffice in a Section 2 case involving a more traditional goods market, in which the Court could reasonably infer that market share was measured by revenue, units sold, or some other typical metric. But this case involves no ordinary or intuitive market. Rather, PSN services are free to use, and the exact metes and bounds of what even constitutes a PSN service — i.e., which features of a company’s mobile app or website are included in that definition and which are excluded — are hardly crystal clear. In this unusual context, the FTC’s inability to offer any indication of the metric(s) or method(s) it used to calculate Facebook’s market share renders its vague “60%-plus” assertion too speculative and conclusory to go forward. https://storage.courtlistener.com/recap/gov.uscourts.dcd.224921/gov.uscourts.dcd.224921.73.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.dcd.224... The court also threw out the similar argument from 46 States (and in a way that the States are unlikely to recover from): > First, the States’ Section 2 and Section 7 attacks on Facebook’s acquisitions are barred by the doctrine of laches, which precludes relief for those who sleep on their rights. Although Defendant purchased Instagram in 2012 and WhatsApp in 2014, Plaintiffs’ suit — which seeks, in the main, to have Facebook divest one or both companies — was not filed until December 2020. The Court is aware of no case, and Plaintiffs provide none, where such a long delay in seeking such a consequential remedy has been countenanced in a case brought by a plaintiff other than the federal government, against which laches does not apply and to which the federal antitrust laws grant unique authority as sovereign law enforcer. If laches is to mean anything, it must apply on these facts, even in a suit brought by states. https://storage.courtlistener.com/recap/gov.uscourts.dcd.224923/gov.uscourts.dcd.224923.137.0_1.pdf https://storage.courtlistener.com/recap/gov.uscourts.dcd.224... Relevant to both suits, the Court separately found that the argument that Facebook violated antitrust law by revoking API access for other apps that duplicated Facebook features lacked merit (the policy is not a violation of antitrust law) and came too late (the implementation when they revoked access was years ago and there is no ongoing misconduct).
ratsmack 5y ago
This makes me wonder if they purposely submitted a weak case to appear proactive for political purposes, while knowing it would be tossed out. There is a lot of money that flows from big tech into the political coffers, so you have to be careful to not rock he boat too much.
- Clubber 5y ago
  It's certainly plausible. I wonder how many of our institutions are really "just for show," like the TSA.
  - Y_Y 5y ago
    What if we replaced the whole anti-monopoly/pro-competition apparatus with a sign that just said "Everything is fine, this is the market working as intended."?
    - tablespoon 5y ago
      > What if we replaced the whole anti-monopoly/pro-competition apparatus with a sign that just said "Everything is fine, this is the market working as intended."? "This is the market working as intended," does not imply "everything is fine."
- markus_zhang 5y ago
  I wouldn't be suprised that FTC is just a friend. I mean it's year 2021, they already figured this out in the 19th century.
- dragonwriter 5y ago
  > This makes me wonder if they purposely submitted a weak case to appear proactive for political purposes, while knowing it would be tossed out. I think its more likely that they were confident that what occurred (complaint dismissed with leave to refile) was the worst they would get, and the best case was that the court would accept the weak and easier to prove claims as sufficient fact allegations to support the case.
- 5y ago
Animats 5y ago
The FTC gets another shot at that, and can probably prevail at this level in the next round. Challenging the acquisitions, though, came too late.
- huitzitziltzin 5y ago
  At the very least they need a plausible market definition, which is not easy. They also need a theory of harm to consumers from facebooks supposed monopolization of whatever they decide the market is. That’s going to be extremely difficult when the product is free. I would not have allowed them to buy Instagram or WhatsApp had I been in charge but the monopolization claim they are trying to make is not that convincing.
neonate 5y ago
https://archive.is/CEVxC https://archive.is/CEVxC

by kyrra 5y ago

granzymes 5y ago

From the opinion, internal citations omitted: > The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims — namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services. The Complaint contains nothing on that score save the naked allegation that the company has had and still has a “dominant share of th[at] market (in excess of 60%).” Such an unsupported assertion might (barely) suffice in a Section 2 case involving a more traditional goods market, in which the Court could reasonably infer that market share was measured by revenue, units sold, or some other typical metric. But this case involves no ordinary or intuitive market. Rather, PSN services are free to use, and the exact metes and bounds of what even constitutes a PSN service — i.e., which features of a company’s mobile app or website are included in that definition and which are excluded — are hardly crystal clear. In this unusual context, the FTC’s inability to offer any indication of the metric(s) or method(s) it used to calculate Facebook’s market share renders its vague “60%-plus” assertion too speculative and conclusory to go forward. https://storage.courtlistener.com/recap/gov.uscourts.dcd.224921/gov.uscourts.dcd.224921.73.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.dcd.224... The court also threw out the similar argument from 46 States (and in a way that the States are unlikely to recover from): > First, the States’ Section 2 and Section 7 attacks on Facebook’s acquisitions are barred by the doctrine of laches, which precludes relief for those who sleep on their rights. Although Defendant purchased Instagram in 2012 and WhatsApp in 2014, Plaintiffs’ suit — which seeks, in the main, to have Facebook divest one or both companies — was not filed until December 2020. The Court is aware of no case, and Plaintiffs provide none, where such a long delay in seeking such a consequential remedy has been countenanced in a case brought by a plaintiff other than the federal government, against which laches does not apply and to which the federal antitrust laws grant unique authority as sovereign law enforcer. If laches is to mean anything, it must apply on these facts, even in a suit brought by states. https://storage.courtlistener.com/recap/gov.uscourts.dcd.224923/gov.uscourts.dcd.224923.137.0_1.pdf https://storage.courtlistener.com/recap/gov.uscourts.dcd.224... Relevant to both suits, the Court separately found that the argument that Facebook violated antitrust law by revoking API access for other apps that duplicated Facebook features lacked merit (the policy is not a violation of antitrust law) and came too late (the implementation when they revoked access was years ago and there is no ongoing misconduct).

ratsmack 5y ago

This makes me wonder if they purposely submitted a weak case to appear proactive for political purposes, while knowing it would be tossed out. There is a lot of money that flows from big tech into the political coffers, so you have to be careful to not rock he boat too much.

Clubber 5y ago
It's certainly plausible. I wonder how many of our institutions are really "just for show," like the TSA.
- Y_Y 5y ago
  What if we replaced the whole anti-monopoly/pro-competition apparatus with a sign that just said "Everything is fine, this is the market working as intended."?
  - tablespoon 5y ago
    > What if we replaced the whole anti-monopoly/pro-competition apparatus with a sign that just said "Everything is fine, this is the market working as intended."? "This is the market working as intended," does not imply "everything is fine."
markus_zhang 5y ago
I wouldn't be suprised that FTC is just a friend. I mean it's year 2021, they already figured this out in the 19th century.
dragonwriter 5y ago
> This makes me wonder if they purposely submitted a weak case to appear proactive for political purposes, while knowing it would be tossed out. I think its more likely that they were confident that what occurred (complaint dismissed with leave to refile) was the worst they would get, and the best case was that the court would accept the weak and easier to prove claims as sufficient fact allegations to support the case.
5y ago

Animats 5y ago

The FTC gets another shot at that, and can probably prevail at this level in the next round. Challenging the acquisitions, though, came too late.

huitzitziltzin 5y ago
At the very least they need a plausible market definition, which is not easy. They also need a theory of harm to consumers from facebooks supposed monopolization of whatever they decide the market is. That’s going to be extremely difficult when the product is free. I would not have allowed them to buy Instagram or WhatsApp had I been in charge but the monopolization claim they are trying to make is not that convincing.

neonate 5y ago

https://archive.is/CEVxC https://archive.is/CEVxC