August 20, 2021

Alicia Batts and Dylan Carson Discuss FTC’s Amended Social Media Monopolization Lawsuit with Global Competition Review

In, “FTC’s amended Facebook suit likely to survive, experts say,” Global Competition Review turned to Faegre Drinker antitrust partners and former Federal Trade Commission (FTC) attorney Alicia Batts and former Department of Justice Antitrust Division attorney Dylan Carson for perspective on the FTC’s amended monopolization lawsuit against Facebook and its likelihood to survive a motion to dismiss.

According to the publication, the FTC’s amended complaint leans heavily on data gathered by media analytics company Comscore, which compares the number consumers and how often they use Facebook as opposed to other platforms the commission deems as rivals. Though the court dismissed the initial complaint and use of the Comscore metrics, the FTC’s amended complaint underscores that Comscore’s data is used by Facebook internally to measure its own competitive success and the viability of rivals, as well as by antitrust enforcers in the UK, Germany and Australia.

Carson explained that the Comscore data should be sufficient at this initial pleading stage of the litigation. He said the FTC would likely provide some comfort to the court in explaining that the metrics are used by the rest of the industry and international competition enforcers.

“The commission nevertheless ignored the court’s advice to find other measurements and therefore may have provided a window for Facebook to try and dismiss the complaint again,” Carson added.

Batts said that the revised complaint resembles the narrative about Facebook’s conduct from the digital markets report published by the House of Representatives antitrust subcommittee in October.

She said the new complaint adopts the House’s description of Facebook’s strategy – “it's better to buy than compete,” as the social network failed to succeed on the competitive merits alone.

“It’s where you can see Lina Khan’s stamp on the complaint,” Batts said. “You can see how she has somewhat fine-tuned the arguments of the commission.”

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