Case 5:22-cv-04325-EJD Document 543 Filed 01/31/23 Page 1 of 6
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`Abby L. Dennis, DC Bar No. 994476
`Peggy Bayer Femenella, DC Bar No. 472770
`Joshua Goodman, NY Bar (No Number)
`Jeanine Balbach, MD Bar (No Number)
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`Federal Trade Commission
`600 Pennsylvania Avenue, NW
`Washington, DC 20580
`Tel: (202) 326-2381
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`adennis@ftc.gov; pbayer@ftc.gov;
`jgoodman@ftc.gov; jbalbach@ftc.gov
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`[Additional counsel identified on signature page in accordance with Local Rule 3-4(a)(1)]
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`Case No. 5:22-cv-04325-EJD
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`PLAINTIFF’S EMERGENCY MOTION
`FOR AN EXTENSION OF THE JOINT
`STIPULATED TRO
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`FEDERAL TRADE COMMISSION,
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`Plaintiff,
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`v.
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`META PLATFORMS, INC., et al.
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` Defendants.
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`PLAINTIFF’S EMERGENCY MOT. FOR EXT. OF THE JOINT STIP. TRO
`CASE NO. 5:22-CV-04325-EJD
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`Case 5:22-cv-04325-EJD Document 543 Filed 01/31/23 Page 2 of 6
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`NOTICE OF MOTION AND MOTION
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`PLEASE TAKE NOTICE that, as soon as the matter may be heard, Plaintiff Federal Trade
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`Commission (“FTC” or “Commission”) hereby moves the Court for an emergency extension of
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`the Joint Stipulated Temporary Restraining Order (Dkt. No. 508) (the “Joint Stipulated TRO”)
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`pursuant to Federal Rule of Civil Procedure 65(b)(2) so that Meta Platforms, Inc. (“Meta”) and
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`Within Unlimited, Inc. (“Within”) may not close or consummate Meta’s acquisition of Within
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`(the “Acquisition”) until after 11:59 p.m. Pacific Time on the first business day after the Court
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`rules on the FTC’s Motion for a Preliminary Injunction. In the alternative, the FTC requests a 7-
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`day extension of the Joint Stipulated TRO, which would eliminate the need for an additional
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`immediate emergency motion in the event the Court denies the preliminary injunction. The FTC
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`respectfully requests the Court to issue this relief prior to 11:59 PM tonight, January 31, 2023—
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`the date and time after which the Joint Stipulated TRO will expire—to preserve the status quo
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`until the Court rules on the preliminary injunction and the parties can determine their immediate
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`next steps.
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`The FTC’s motion is based on this Notice of Motion; the Memorandum of Points and
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`Authorities in Support and Declaration filed concurrently; all other pleadings on file in this action;
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`and any other written or oral argument that the FTC may present to the Court.
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`DATED: January 31, 2023
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`Respectfully submitted,
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`/s/ Abby L. Dennis
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`Abby L. Dennis
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`PLAINTIFF’S EMERGENCY MOT. FOR EXT. OF THE JOINT STIP. TRO
`NO. 5:22-CV-04325-EJD
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`Case 5:22-cv-04325-EJD Document 543 Filed 01/31/23 Page 3 of 6
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`Under the Joint Stipulated TRO, Defendants may consummate the proposed Acquisition
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`after January 31, 2023 at 11:59 PM Pacific Standard Time, or on “the first (1st) business day after
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`the District Court rules on the FTC’s request for a preliminary injunction pursuant to Section
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`13(b) of the Federal Trade Commission Act, whichever occurs earlier in time.” Dkt. No. 508 at
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`6. Accordingly, if the Court does not rule today on the FTC’s Motion for a Preliminary Injunction,
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`Defendants can close or consummate the Acquisition tonight after 11:59 PM Pacific Time.
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`Without an extension of the Joint Stipulated TRO, Defendants will be able to consummate
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`the Acquisition. And consummation will irreparably harm the FTC’s ability to obtain effective
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`relief for the public at the conclusion of any further proceedings. By contrast, Defendants will not
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`be prejudiced by the minimal delay caused by a short extension of the TRO.
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`The FTC thus respectfully moves this Court for a short extension of the Joint Stipulated
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`TRO pursuant to Rule 65(b), preventing the parties from consummating the transaction until
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`11:59 PM Pacific Time on the first business day following the Court’s preliminary injunction
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`ruling. In the alternative, the FTC requests a 7-day extension, which would eliminate the need for
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`an additional immediate emergency motion in the event the Court denies the preliminary
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`injunction. This requested relief is necessary to preserve the status quo, which would otherwise
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`be irreparably altered once the merger is consummated.
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`Given that Defendants can close the proposed Acquisition after 11:59 PM tonight if the
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`Court does not rule on the preliminary injunction by then, the FTC respectfully requests that the
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`Court rule on this motion as soon as possible but no later than 11:59 PM tonight.
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`ARGUMENT
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`Federal Rule of Civil Procedure 65(b) permits the district court, for good cause, to extend
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`the expiration date of a temporary restraining order. Fed. R. Civ. P. 65(b)(2) (“The [temporary
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`restraining] order expires at the time after entry--not to exceed 14 days--that the court sets, unless
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`before that time the court, for good cause, extends it for a like period or the adverse party consents
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`to a longer extension.”); Castellanos v. Countrywide Bank, NA, 15-cv-896, 2015 WL 914436, at
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`PLAINTIFF’S EMERGENCY MOT. FOR EXT. OF THE JOINT STIP. TRO
`NO. 5:22-CV-04325-EJD
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`Case 5:22-cv-04325-EJD Document 543 Filed 01/31/23 Page 4 of 6
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`*3 (N.D. Cal. Feb. 27, 2015) (Davila, J.) (extending previously issued TRO for 14 days); Humana
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`Ins. Co. v. Tenet Health Sys., 1:16-cv-1450, 2016 WL 6094676, at *7 (E.D. Cal. Oct. 17, 2016)
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`(same). The temporary restraining order is “an equitable device for preserving the status quo and
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`preventing the irreparable loss of rights.” Textile Unlimited, Inc. v. A. BMH & Co., Inc., 240 F.3d
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`781, 786 (9th Cir. 2001). Moreover, the Court possesses even “greater power” to fashion equitable
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`relief “in defense of the public interest than it has when only private interests are involved.” Cal.
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`ex rel. Van de Kamp v. Tahoe Reg. Planning Agency, 766 F.2d 1319, 1324 (9th Cir. 1985).
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`Here, there is good cause for the FTC’s requested short extension of the Joint Stipulated
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`TRO. If Defendants are allowed to merge, the status quo will be irreparably altered, and the FTC’s
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`ability to obtain full and effective relief at the conclusion of any further proceedings will be
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`seriously prejudiced if not foreclosed altogether. Unless the Court issues its ruling on the
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`preliminary injunction today, or grants this requested TRO extension, Defendants will be free to
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`consummate the Acquisition after 11:59 PM tonight. Constructing and enforcing an effective
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`divestiture order after merging parties have combined their operations has historically been
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`exceedingly difficult or even impossible. See, e.g., FTC v. Warner Commc’ns Inc., 742 F.2d 1156,
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`1165 (9th Cir. 1984) (recognizing effective relief would be impossible once transaction occurred).
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`At that point, “it is extraordinarily difficult to unscramble the egg” and “to preserve competition.”
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`FTC v. Penn State Hershey Med. Ctr., 838 F.3d 327, 352-53 (3d Cir. 2016) (cleaned up).
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`The public has a strong interest in the effective enforcement of the antitrust laws. See
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`United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 323 (1961). Denying the requested
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`relief would undermine that interest by denying the public the opportunity to obtain full and
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`complete relief should the FTC ultimately prevail on the merits. Cf. Warner, 742 F.2d at 1165
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`(denial of injunction “would preclude effective relief if the Commission ultimately prevails and
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`divestiture is ordered”).
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`Defendants, on the other hand, will suffer no harm or little harm from a brief extension of
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`the Joint Stipulated TRO. The parties began exploring the Acquisition over eighteen months ago;
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`postponing it a few more days will not make a difference. Moreover, “the parties have until April
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`PLAINTIFF’S EMERGENCY MOT. FOR EXT. OF THE JOINT STIP. TRO
`NO. 5:22-CV-04325-EJD
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`Case 5:22-cv-04325-EJD Document 543 Filed 01/31/23 Page 5 of 6
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`to consummate this deal or they can walk.” Hr’g Tr. at 46:21-23. A short delay therefore will not
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`imperil the deal. Nor will it affect the start of the administrative trial on the merits, which is now
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`set to begin on February 13, 2023. In the Matter of Meta Platforms, Inc., Mark Zuckerberg, and
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`Within Unlimited, Inc., Dkt. No. 9411 (First Revised Scheduling Order, Jan. 11, 2023) at 2.
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`If the Court grants the FTC’s Motion for a Preliminary Injunction today, the transaction
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`will be enjoined pending completion of the administrative proceedings, and this motion will be
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`moot. If, however, the Court denies the preliminary injunction today, the parties may consummate
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`the merger on the first business day following the ruling, i.e., tomorrow. Dkt. 508 at 6. In that
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`event, the FTC expects to move for further emergency relief to preserve the status quo while it
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`(1) evaluates the Court’s decision and obtains the necessary internal approvals for any appeal and
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`(2) prepares and files a motion for an injunction pending appeal under Rule 62, if an appeal is
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`taken. Fed. R. Civ. P. 62(d); see Doe #1 v. Trump, 944 F.3d 1222, 1223 (9th Cir. 2021) (a
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`temporary stay can preserve the status quo while a court considers whether to grant relief pending
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`appeal).
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`Accordingly, in the alternative, the FTC requests that the Court extend the Joint Stipulated
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`TRO seven days, such that the parties could not consummate the deal until after 11:59 PM on
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`February 7. A 7-day extension would obviate the need for an additional immediate emergency
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`motion in the event the Court denies the preliminary injunction. In that event, the FTC would file
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`any Rule 62 motion for an injunction pending appeal by or on February 7.
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`CONCLUSION
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`For the foregoing reasons, Plaintiff respectfully requests that this Court extend the Joint
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`Stipulated TRO (Dkt. No. 508) pursuant to Rule 65(b), so that Meta and Within cannot close or
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`consummate the proposed Acquisition until after 11:59 p.m. Pacific Standard Time on the first
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`business day after the Court rules on the FTC’s Motion for a Preliminary Injunction. In the
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`alternative, Plaintiff requests that the Court extend the Joint Stipulated TRO seven days, so that
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`the parties cannot consummate the Acquisition until after 11:59 p.m. Pacific Standard Time on
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`PLAINTIFF’S EMERGENCY MOT. FOR EXT. OF THE JOINT STIP. TRO
`NO. 5:22-CV-04325-EJD
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`Case 5:22-cv-04325-EJD Document 543 Filed 01/31/23 Page 6 of 6
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`February 7, 2023.
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`Dated: January 31, 2023
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`Respectfully submitted,
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`/s/ Abby L. Dennis
`Abby L. Dennis
`Peggy Bayer Femenella
`Joshua Goodman
`Jeanine Balbach
`Michael Barnett
`E. Eric Elmore
`Justin Epner
`Sean D. Hughto
`Frances Anne Johnson
`Andrew Lowdon
`Lincoln Mayer
`Erika Meyers
`Susan A. Musser
`Adam Pergament
`Kristian Rogers
`Anthony R. Saunders
`Timothy Singer
`James H. Weingarten
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`Federal Trade Commission
`600 Pennsylvania Avenue, NW
`Washington, DC 20580
`Tel: (202) 326-2381
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`Erika Wodinsky
`90 7th Street, Suite 14-300
`San Francisco, CA 94103
`Tel: (415) 848-5190
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`Counsel for Plaintiff Federal Trade
`Commission
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`PLAINTIFF’S EMERGENCY MOT. FOR EXT. OF THE JOINT STIP. TRO
`NO. 5:22-CV-04325-EJD
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