Facebook again asks judge to dismiss U.S. lawsuit to force sale of Instagram, WhatsApp

October 4, 2021

By David Shepardson and Diane Bartz

WASHINGTON (Reuters) -Facebook Inc asked a judge on Monday to dismiss the U.S. government’s revised antitrust case that seeks to force the social media giant to sell Instagram and WhatsApp.

Facebook said in a court filing that the Federal Trade Commission (FTC) had failed to provide a “plausible factual basis for branding Facebook an unlawful monopolist.” The company added it appears the FTC “had no basis for its naked allegation that Facebook has or had a monopoly.”

The social media giant asked that the lawsuit be dismissed with prejudice, which would make it harder for the agency to amend the lawsuit. The FTC declined to comment.

Judge James Boasberg of the U.S. District Court for the District of Columbia ruled in June that the FTC’s original complaint filed in December failed to provide evidence that Facebook had monopoly power in the social-networking market.

The FTC’s amended complaint, filed in August, added more detail on its accusation the social media company crushed or bought rivals and again asked Boasberg to order the sale of Instagram and WhatsApp.

The FTC argued at length in its revised complaint that Facebook dominates the U.S. personal social networking market with more than 65% of monthly active users since 2012.

Facebook filing said the FTC’s complaint was “at odds with the commercial reality of intense competition with surging rivals like TikTok and scores of other attractive options for consumers.”

The FTC voted 3-2 along party lines in August to file the amended lawsuit and denied Facebook’s request that agency chair Lina Khan be recused.

In its motion, Facebook argued that the FTC vote to file the amended complaint was not valid because Khan participated.

It included a long series of statements from Khan, made before she became chair of the FTC, which were critical of the social media giant. In a series of tweets from December 2020, she praises lawsuits brought by the FTC and state attorneys general saying “hopeful that it marks yet another step forward in the growing efforts to rehabilitate antitrust laws.”

Facebook also notes that the FTC is suing to undo mergers that it had approved: Instagram, which it bought in 2012 for $1 billion, and WhatsApp, which it bought in 2014 for $19 billion.

“The FTC challenges acquisitions that the agency cleared after its own contemporaneous review…,” the motion said. “The case is entirely without legal or factual support. This is as true now as it was before.”

Facebook also included a dissent from FTC Commissioner Christine Wilson, a Republican, who had voted to oppose filing the amended lawsuit because the FTC had raised no objections to the Instagram and WhatsApp deals.

“The FTC’s fictional market ignores the competitive reality: Facebook competes vigorously with TikTok, iMessage, Twitter, Snapchat, LinkedIn, YouTube, and countless others to help people share, connect, communicate or simply be entertained,” a Facebook spokesperson said. “The FTC cannot credibly claim Facebook has monopoly power because no such power exists.”

(Reporting by David Shepardson; Editing by Lisa Shumaker)

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