Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 1 of 10
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`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`Stephen A. Swedlow (admitted pro hac vice)
` stephenswedlow@quinnemanuel.com
`191 N. Wacker Drive, Suite 2700
`Chicago, IL 60606
`(312) 705-7400
`
`HAGENS BERMAN SOBOL SHAPIRO LLP
`Shana E. Scarlett (Bar No. 217895)
` shanas@hbsslaw.com
`715 Hearst Avenue, Suite 202
`Berkeley, CA 94710
`(510) 725-3000
`
`Interim Co-Lead Consumer Class Counsel
`
`[Additional counsel listed on signature page]
`
`BATHAEE DUNNE LLP
`Yavar Bathaee (Bar No. 282388)
` yavar@bathaeedunne.com
`445 Park Avenue, 9th Floor
`New York, NY 10022
`(332) 205-7668
`
`SCOTT+SCOTT ATTORNEYS AT LAW
`LLP
`Kristen M. Anderson (Bar No. 246108)
` kanderson@scott-scott.com
`230 Park Avenue, 17th Floor
`New York, NY 10169
`(212) 223-6444
`
`Interim Co-Lead Advertiser Class Counsel
`
`
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`
`
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`MAXIMILIAN KLEIN, et al.,
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`Plaintiffs,
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` Consolidated Case No. 5:20-cv-08570-LHK
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`CONSUMER CLASS PLAINTIFFS’ AND
`ADVERTISER CLASS PLAINTIFFS’
`SUPPLEMENTAL BRIEF REGARDING
`GOVERNMENT ORDERS
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`The Hon. Lucy H. Koh
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`Hearing Date: July 15, 2021 at 1:30 p.m.
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`vs.
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`FACEBOOK, INC.,
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`Defendant.
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`This Document Relates To: All Actions
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`Case No. 5:20-cv-08570-LHK
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`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING GOVERNMENT ORDERS
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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 2 of 10
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`TABLE OF CONTENTS
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`I.
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`FEDERAL TRADE COMMISSION ORDER ......................................................................1
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`A.
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`B.
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`The FTC Order Sustained the FTC’s PSN Market Definition ...................................1
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`Determinations Regarding FTC’s Monopoly Power Allegations ..............................2
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`II.
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`STATES ORDER ...................................................................................................................4
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`A.
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`B.
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`Determinations Regarding Facebook’s “Platform” Access Policies ..........................4
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`Determinations that Injunctive Relief as to Individual Acquisitions Barred by
`Laches .........................................................................................................................4
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`Case No. 5:20-cv-08570-LHK
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`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING GOVERNMENT ORDERS
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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 3 of 10
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`Facebook claims that the District Court for the District of Columbia’s (“D.D.C.”) dismissal
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`of the government antitrust lawsuits against Facebook requires dismissal of these private actions.
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`Dkt. 114 at 5. Both the Consumer Complaint (“CC”) and the Advertiser Complaint (“AC”),
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`however, present materially different legal theories and factual allegations that the D.D.C.
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`indisputably did not (and could not) resolve. And those decisions reject some of the same arguments
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`Facebook advances here, further highlighting why its motion, Dkt. 97 (“Mot.”), should be denied.
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`I.
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`FEDERAL TRADE COMMISSION ORDER
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`A.
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`The FTC Order Sustained the FTC’s PSN Market Definition
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`Consumers. In finding the “Personal Social Networking Services” market plausible, the
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`D.D.C. rejected many of the arguments that Facebook repeats here. Fed. Trade Comm’n v.
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`Facebook, Inc., No. 20-cv-03590 (D.D.C. June 28, 2021), Dkt. 73 (“FTC Order”) at 23.
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`Although there are some differences, the FTC’s PSN Market definition is highly similar to
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`Consumers’ Social Network Market definition. In finding the PSN Market plausible, the D.D.C.
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`necessarily disposed of Facebook’s argument that such a market definition fails because the products
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`in it are purportedly “free and available in unlimited quantities.” FTC Order at 23; Mot. at 15; Dkt.
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`109 (“Opp.”) at 16. The D.D.C. explicitly rejected Facebook’s argument that market definition
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`requires reference to demand cross-elasticity, even where reasonable interchangeability is alleged.
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`FTC Order at 24; Mot. at 17–18; Opp. at 17–18. And the D.D.C. also rejected Facebook’s arguments
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`regarding what firms are in the PSN Market and its attempts to inject in “other possible substitutes,”
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`all of which Facebook improperly parrots here. FTC Order at 25–26; Mot. at 15–18; Opp. at 16–18.
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`Advertisers. The FTC did not allege, and the D.D.C. did not address, Advertisers’ Social
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`Advertising Market. However, the D.D.C. rejected Facebook’s factual disputes concerning the
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`FTC’s well-pleaded allegations that consumers would not substitute other services. FTC Order at
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`25. In this case, Facebook “directly takes aim,” id. at 25, at Advertisers’ allegations that search and
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`display ads are not reasonable substitutes. Mot. at 15; see AC ¶¶ 413–444. Per the FTC Order, it is
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`improper at this stage “to engage in the sort of ‘deeply fact-intensive inquiry’” raised by Facebook
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`regarding market definition. FTC Order at 25. This underscores the flawed premise of Facebook’s
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`arguments on this issue here.
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`Case No. 5:20-cv-08570-LHK
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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 4 of 10
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`B.
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`Determinations Regarding FTC’s Monopoly Power Allegations
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`The D.D.C. determined that the FTC’s “mere[]” allegations that Facebook has “maintained
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`a dominant share” of the PSN Market “in excess of 60%” and that “no other social network of
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`comparable scale exists in the United States” do “not even provide an estimated figure or range for
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`Facebook’s market share at any point over the past ten years[.]” FTC Order at 27, 32.
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`Consumers. The D.D.C. rejected the FTC’s “exceeds 60%” allegation as “bare assertions”
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`of the minimum share usually required to establish monopoly power. FTC Order at 19, 28
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`(recognizing 60–65% usually required, collecting cases involving similar “threadbare recital[s]”).
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`But the CC does not allege merely the minimum share legally required; it alleges Facebook “has
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`market share of at least 85% of the Social Media Market” and that its share in the Social Network
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`Market “is higher” since the latter is a part of the former.1 CC ¶¶ 56, 71, 286. As explained below,
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`the CC also alleges specific facts of Facebook’s share, not threadbare recitals of the legal minimum.
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`The D.D.C. noted that while the FTC’s lone “exceeds 60%” allegation “might sometimes be
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`acceptable” in a “case involving a more traditional goods market,” it was not there given the PSN
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`Market definition and the quantum of share alleged. FTC Order at 2, 27–28 (citing Phillip E. Areeda
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`& Herbert Hovenkamp, Antitrust Law § 531 (4th ed. 2014)). The treatise upon which the D.D.C.
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`relied rejects any “sliding scale” but explains that whether a “minimum share” is sufficient
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`“depends” on “confidence” as to market definition, such that a higher share may be needed to bolster
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`allegations of monopoly power in an “idiosyncratically drawn” market. Phillip E. Areeda & Herbert
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`Hovenkamp, Antitrust Law § 532a (5th ed. 2021). The D.D.C. did not, however, state that a factual
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`allegation of a specific market share, such as here (85%), can be disregarded. Nor could it. See Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (factual allegations “taken as true”); Areeda,
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`Antitrust Law § 532a (“Once a market is defined, no matter how tenuously, courts examine market
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`share on the assumption that all market definitions are alike.”). Instead, the D.D.C. faulted the FTC
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`for alleging merely the legal minimum of “exceeds 60%,” failing “to allege that Facebook has ever
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`. . . had something like 85% or even 75%” share, and failing to explain “which firms make up the
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`1 Consumers also assert standalone attempted monopolization claims (which the FTC did not) for
`each market. See Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1438 (9th Cir. 1995) (44% market
`share “sufficient as a matter of law” to support attempt claim, and even 30% possibly sufficient).
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`Case No. 5:20-cv-08570-LHK
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`remaining 30–40%[.]” FTC Order at 30–31. Here, the CC alleges that Facebook controls more than
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`85% of the Social Media and Social Network Markets, past competitors are defunct, and current
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`competitors are “only a very small drop in the ocean[.]” CC ¶¶ 56, 68, 71, 140, 286.
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`The D.D.C. also explained that the FTC did not “offer any indication of the metric(s) or
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`method(s) it used to calculate Facebook’s market share[.]” FTC Order at 2. Consumers provide such
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`support for their specific share estimations including, e.g., Facebook’s own estimation that it is
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`“95% of all social media in the US.”2 CC ¶ 77. The CC also alleges that “more than 80% of the time
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`that consumers . . . spend using social media is spent on Facebook and Instagram,” explaining how
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`Facebook values and uses “time spent” to measure competitive performance, secretly gathering
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`Consumers’ data as to their time spent on other apps. Id. ¶¶ 78, 163–65, 211, 286; accord Dkt. 97-
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`6 at 8 (internal presentation cited at CC ¶ 77, and attached to Facebook’s motion, tracking that
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`“Facebook has ~125x the amount of minutes spent per user” compared to Google+). The CC cites
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`documents—e.g., the House Report and an article Facebook attached to its motion (Dkt. 97-4 at 87–
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`88)—which use “time spent” to calculate market share.3 To the extent the D.D.C. suggested this
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`metric—which the FTC “sa[id] nothing about”—may be inapt for the PSN Market because “some
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`of the features offered by a Facebook” are not “part of” its PSN-services offerings,” FTC Order at
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`29–30, the CC does not exclude those features from Consumers’ markets. CC ¶¶ 15, 56, 59, 262.
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`The CC also supports its share estimates using Facebook’s high share of ad revenue. CC ¶¶
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`80, 286. The D.D.C. suggested that ad revenue itself “cannot be the right metric for measuring
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`market share here,” as it is “earned in a separate market . . . the market for advertising.” FTC Order
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`at 29. But the CC does not allege that Facebook’s ad revenue share is its share of the Social Network
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`or Social Media Markets; the CC alleges Facebook’s ad revenue share is probative of Facebook’s
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`Social Media Market share, since the more users a social network or social media app has, the more
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`popular it is with advertisers. CC ¶¶ 80, 83, 86; cf. Nat’l Collegiate Athletic Ass’n v. Bd. of Regents
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`2 Facebook now disclaims its own internal estimates as “nearly a decade old,” “not track[ing]
`Users’ alleged market definition,” and “irrelevant.” Mot. at 19. Its own estimation that it had near-
`total power in some market it defines as “social media” is certainly relevant. Cf. FTC Order at 27.
`3 The “95% of all social media” presentation cited at CC ¶ 77, which Facebook now disclaims but
`attached to its motion, itself uses “monthly total minutes of use” to calculate share. Dkt. 97-5 at 3.
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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 6 of 10
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`of Univ. of Oklahoma, 468 U.S. 85, 111 (1984) (that firm “uniquely attractive” to advertisers
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`“support[s] conclusion” that firm “possesses market power” in broadcasting market).
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`Advertisers. The D.D.C. did not address Facebook’s monopoly power in the Social
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`Advertising Market. Nor did Facebook challenge Advertisers’ allegations here. See generally Mot.
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`at 18; Opp. at 20 n.21; AC ¶¶ 61–83, 445–60 (Facebook’s monopoly power based on its 86% share
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`of ad revenues, ability to raise prices year after year, and protection by high barriers to entry).
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`II.
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`STATES ORDER
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`A.
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`Determinations Regarding Facebook’s “Platform” Access Policies
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`The D.D.C. found the States’ Section 2 claim based on Facebook’s third-party “Platform”
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`policies failed under “refusal to deal” and “conditional dealing” principles. State of New York et al.
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`v. Facebook, Inc., No. 20-cv-03589 (D.D.C. June 28, 2021), Dkt. 137 (“States Order”) at 22–23.
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`Consumers. Consumers’ claims do not implicate Facebook’s “Platform” policies. Opp. at
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`27. Instead, Consumers challenge Facebook’s deception of the market and larger course of conduct
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`involving Facebook’s serial acquisitions and use of deceptively-obtained data to identify
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`competitors and inform those acquisitions. Id. at 24. The D.D.C., by contrast, explicitly noted that
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`“Facebook’s data-collection and -use practices . . . are not the subject of this action.” Id. at 7.
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`Advertisers. The D.D.C.’s refusal to deal analysis does not weigh against Advertisers’
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`Section 2 claims. It in fact supports the AC’s refusal allegations, as the D.D.C. stated specific
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`revocations of API access to applications deemed competitive could violate Section 2, but held those
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`potentially unlawful refusals were not recent enough to justify injunctive relief. See States Order at
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`31–35. The AC does not make a “policy” argument like the one rejected in the States Order, see id.
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`at 28–30, nor does the AC rely on a conditional dealing theory under Lorain Journal, see id. at 35–
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`40. Rather, the AC alleges, as to Platform conduct, each of the Aspen elements with particularity, as
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`well as anticompetitive agreements for advertising purchases and data sharing that directly inflated
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`social advertising demand and prices and reinforced Facebook’s DTBE. Opp. at 5–6, 25–26.
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`B.
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`Determinations that Injunctive Relief as to Individual Acquisitions Barred by Laches
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`Since the States sought only injunctive relief and divestiture, their Section 2 and Clayton Act
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`Section 7 challenges to the Instagram and WhatsApp acquisitions were barred by laches, as the
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`Case No. 5:20-cv-08570-LHK
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`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING GOVERNMENT ORDERS
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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 7 of 10
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`States did not respond to Facebook’s “timeliness arguments” and “rais[e] (or even hint[] at) a factual
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`dispute as to” accrual or provide “a reasonable justification” for delay. States Order at 40, 66.
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`Consumers. The D.D.C.’s findings as to the States’ equitable, acquisition claims do not
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`address Consumers’ standalone claims based on deception (which are timely). Opp. at 8, 21–24.
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`Moreover, the CC does not independently challenge individual acquisitions (such as under
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`Section 7); it challenges Facebook’s serial acquisitions of rivals as part of a multi-part scheme,
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`along with non-acquisition conduct like deceiving Consumers and using their data to spy on
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`competitors.4 Opp. at 24–25. Whereas the D.D.C faulted the States since neither the “buy” nor the
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`“bury” portions of their course of conduct theory occurred during the limitations period, States Order
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`at 59–65, the CC details how—in furtherance of the different scheme Consumers allege—Facebook
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`engaged in additional, non-acquisition acts during the limitations period (deception and spying).
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`See CC ¶¶ 156–58, 168, 209, 212, 238(n)(o); Oliver v. SD-3C LLC, 751 F.3d 1081, 1086–87 (9th
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`Cir. 2014) (equitable antitrust claims timely if based on acts occurring within limitations period).
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`And while the fact of acquisitions was known, that they were enabled by deceptive conduct, and
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`part of a broader anticompetitive scheme, was not until within the limitations period. Opp. at 15, 25.
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`In all events, the D.D.C. repeatedly noted that it was only adjudicating equitable claims.
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`States Order at 2, 34, 40. As such, laches—which considers both delay and prejudice—governed
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`those claims. Id. at 43. But the CC also asserts claims for damages, including for different harms—
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`e.g., Consumers not receiving adequate compensation for their data—which continued into the
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`limitations period. CC ¶¶ 11, 223–26; Opp. at 4–5, 8–9. The D.D.C.’s concerns as to “prejudice to
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`Facebook,” States Order at 45–47, are thus no bar to the damages claims here. See Oliver, 751 F.3d
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`at 1085–86, 1086 n.4 (“Unlike [antitrust] damages claims” subject to “statute of limitations,”
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`equitable antitrust claims subject to laches, including prejudice element).
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`Advertisers. Because Advertisers do not seek injunctive relief based on the Platform or
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`acquisition conduct alleged by the States, the D.D.C.’s laches analysis is irrelevant. Advertisers’
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`damages claims are timely under the continuing violation and fraudulent concealment doctrines.
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`4 As such, even if certain individual acquisitions are not independently actionable, they are germane
`to Consumers’ claims. Opp. at 25 (course of conduct); see also Dial Corp. v. News Corp., 165 F.
`Supp. 3d 25, 37–38 (S.D.N.Y. 2016) (pre-limitations acts “material to” damages period injuries).
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`Case No. 5:20-cv-08570-LHK
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`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING GOVERNMENT ORDERS
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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 8 of 10
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`DATED: July 5, 2021
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`
`
`By: /s/ Yavar Bathaee
`BATHAEE DUNNE LLP
`Yavar Bathaee (Bar No. 282388)
` yavar@bathaeedunne.com
`Edward M. Grauman (admitted pro hac
`vice)
` egrauman@bathaeedunne.com
`Andrew C. Wolinsky (admitted pro hac
`vice)
` awolinsky@bathaeedunne.com
`445 Park Avenue, 9th Floor
`New York, NY 10022
`(332) 206-7668
`
`Brian J. Dunne (Bar No. 275689)
` bdunne@bathaeedunne.com
`633 West Fifth Street, 26th Floor
`Los Angeles, CA 90071
`(213) 462-2772
`
`
`By: /s/ Kristen M. Anderson
`
`SCOTT+SCOTT ATTORNEYS AT LAW LLP
`Kristen M. Anderson (Bar No. 246108)
` kanderson@scott-scott.com
`230 Park Avenue, 17th Floor
`New York, NY 10169
`(212) 223-6444
`
`Christopher M. Burke (Bar No. 214799)
` cburke@scott-scott.com
`David H. Goldberger (Bar No. 225869)
` dgoldberger@scott-scott.com
`Yifan (Kate) Lv (Bar No. 302704)
` klv@scott-scott.com
`600 W. Broadway, Suite 3300
`San Diego, CA 92101
`(619) 233-4565
`
`Patrick J. McGahan (admitted pro hac vice)
` pmcgahan@scott-scott.com
`Michael P. Srodoski (admitted pro hac
`vice)
` msrodoski@scott-scott.com
`156 South Main Street, P.O. Box 192
`Colchester, CT 06415
`(860) 537-5537
`
`
`
` Respectfully submitted,5
`
`
` By: /s/ Stephen A. Swedlow
`
`QUINN EMANUEL URQUHART & SULLIVAN,
`LLP
`Stephen A. Swedlow (admitted pro hac vice)
` stephenswedlow@quinnemanuel.com
`Michelle Schmit (admitted pro hac vice)
` michelleschmit@quinnemanuel.com
`191 N. Wacker Drive, Suite 2700
`Chicago, IL 60606-1881
`(312) 705-7400
`
`Kevin Y. Teruya (Bar No. 235916)
` kevinteruya@quinnemanuel.com
`Adam B. Wolfson (Bar No. 262125)
` adamwolfson@quinnemanuel.com
`Brantley I. Pepperman (Bar No. 322057)
` brantleypepperman@quinnemanuel.com
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017-2543
`(213) 443-3000
`
`Manisha M. Sheth (admitted pro hac vice)
` manishasheth@quinnemanuel.com
`51 Madison Avenue, 22nd Floor
`New York, New York 10010
`(212) 849-7000
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`By: /s/ Shana E. Scarlett
`HAGENS BERMAN SOBOL SHAPIRO LLP
`Shana E. Scarlett (Bar No. 217895)
` shanas@hbsslaw.com
`715 Hearst Avenue, Suite 202
`Berkeley, CA 94710
`(510) 725-3000
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`Steve W. Berman (admitted pro hac vice)
` steve@hbsslaw.com
`1301 Second Avenue, Suite 2000
`Seattle, WA 98101
`(206) 623-7292
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`5 Each Interim Counsel joins in their respective Class’s arguments and allegations, as well as in
`the joint arguments contained herein.
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`Case No. 5:20-cv-08570-LHK
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`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING GOVERNMENT ORDERS
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`

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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 9 of 10
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`By: /s/ Tina Wolfson
`AHDOOT & WOLFSON, PC
`Tina Wolfson (Bar No. 174806)
` twolfson@ahdootwolfson.com
`Robert Ahdoot (Bar No. 172098)
` rahdoot@ahdootwolfson.com
`Theodore W. Maya (Bar No. 223242)
` tmaya@ahdootwolfson.com
`Rachel Johnson (Bar No. 331351)
` rjohnson@ahdootwolfson.com
`2600 West Olive Avenue, Suite 500
`Burbank, CA 91505
`(310) 474-9111
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`By: /s/ Keith J. Verrier
`LEVIN SEDRAN & BERMAN LLP
`Keith J. Verrier (admitted pro hac vice)
` kverrier@lfsblaw.com
`Austin B. Cohen (admitted pro hac vice)
` acohen@lfsblaw.com
`510 Walnut Street, Suite 500
`Philadelphia, PA 19106-3997
`(215) 592-1500
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`Interim Counsel for the Advertiser Class
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`By: /s/ Warren Postman
`KELLER LENKNER LLC
`Warren Postman (Bar No. 330869)
` wdp@kellerlenkner.com
`Jason Ethridge (admitted pro hac vice)
` jason.ethridge@kellerlenkner.com
`1300 I Street, N.W., Suite 400E
`Washington, DC 20005
`(202) 918-1123
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`Ashley Keller (admitted pro hac vice)
` ack@kellerlenkner.com
`Ben Whiting (admitted pro hac vice)
` ben.whiting@kellerlenkner.com
`Jason A. Zweig (admitted pro hac vice)
` jaz@kellerlenkner.com
`150 N. Riverside Plaza, Suite 4270
`Chicago, IL 60606
`(312) 741-5220
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`By: /s/ Brian D. Clark
`LOCKRIDGE GRINDAL NAUEN P.L.L.P.
`W. Joseph Bruckner (admitted pro hac vice)
` wjbruckner@locklaw.com
`Robert K. Shelquist (admitted pro hac vice)
` rkshelquist@locklaw.com
`Brian D. Clark (admitted pro hac vice)
` bdclark@locklaw.com
`Rebecca A. Peterson (Bar No. 241858)
` rapeterson@locklaw.com
`Arielle S. Wagner (admitted pro hac vice)
` aswagner@locklaw.com
`100 Washington Avenue South, Suite 2200
`Minneapolis, MN 55401
`(612) 339-6900
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`Interim Counsel for the Consumer Class
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`Case No. 5:20-cv-08570-LHK
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`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING GOVERNMENT ORDERS
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`

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`Case 5:20-cv-08570-LHK Document 116 Filed 07/05/21 Page 10 of 10
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`ATTESTATION OF STEPHEN A. SWEDLOW
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`This document is being filed through the Electronic Case Filing (ECF) system by attorney
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`Stephen A. Swedlow. By his signature, Mr. Swedlow attests that he has obtained concurrence in
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`the filing of this document from each of the attorneys identified on the caption page and in the above
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`signature block.
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`Dated: July 5, 2021
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`By /s/ Stephen A. Swedlow
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` Stephen A. Swedlow
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 5th day of July 2021, I electronically transmitted the foregoing
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`document to the Clerk’s Office using the CM/ECF System, causing the document to be
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`electronically served on all attorneys of record.
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`By /s/ Stephen A. Swedlow
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` Stephen A. Swedlow
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`Case No. 5:20-cv-08570-LHK
`-8-
`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING GOVERNMENT ORDERS
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`