Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 1 of 22
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`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`SONAL N. MEHTA (SBN 222086)
` Sonal.Mehta@wilmerhale.com
`2600 El Camino Real, Suite 400
`Palo Alto, California 94306
`Telephone: (650) 858-6000
`DAVID Z. GRINGER (pro hac vice)
` David.Gringer@wilmerhale.com
`7 World Trade Center
`250 Greenwich Street
`New York, New York 10007
`Telephone: (212) 230-8800
`ARI HOLTZBLATT (pro hac vice)
` Ari.Holtzblatt@wilmerhale.com
`MOLLY M. JENNINGS (pro hac vice)
` Molly.Jennings@wilmerhale.com
`1875 Pennsylvania Ave NW
`Washington, DC 20006
`Telephone: (202) 663-6000
`
`Attorneys for Defendant Meta Platforms, Inc.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
` Case No. 3:20-cv-08570-JD
`
`META PLATFORM, INC.’S MOTION TO
`DISMISS FIRST AMENDED
`CONSOLIDATED ADVERTISER CLASS
`ACTION COMPLAINT
`Hearing Date: May 26, 2022
`Time: 10:00 am
`Judge: Hon. James Donato
`
`MAXIMILIAN KLEIN, et al., on behalf of
`themselves and all others similarly situated,
`Plaintiffs,
`
`v.
`META PLATFORMS, INC., a Delaware
`Corporation headquartered in California,
`Defendant.
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`No. 3:20-cv-08570-JD
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 2 of 22
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`TABLE OF CONTENTS
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`NOTICE OF MOTION AND MOTION .........................................................................................1
`STATEMENT OF REQUESTED RELIEF .....................................................................................1
`MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
`RELEVANT FACTUAL AND PROCEDURAL BACKGROUND ..............................................3
`ARGUMENT ...................................................................................................................................4
`I.
`Plaintiffs’ Claims Are Still Time-Barred .................................................................4
`A.
`Plaintiffs’ “Copy, Acquire, Kill” Claims Remain Untimely .......................5
`B.
`The New “Entry and Capture” Theory Is Untimely and
`Unauthorized ................................................................................................8
`Plaintiffs Still Do Not State Valid Section 2 Claims ...............................................9
`A.
`None Of The New Conduct Challenged Is Cognizable ...............................9
`1.
`The “Entry And Capture” Theory Fails ...........................................9
`2.
`Improving Meta’s Machine Learning Models Is Not
`Anticompetitive..............................................................................12
`“Copy, Acquire, Kill” Is Not Cognizable ..................................................13
`B.
`Plaintiffs’ Section 1 Claim (Count III) Largely Fails ............................................14
`A.
`An “Entry And Capture” Section 1 Claim Is Not Alleged And Is
`Meritless .....................................................................................................14
`Named Plaintiffs For The Pre-2018 Class Lack Standing For
`Count III .....................................................................................................15
`CONCLUSION ..............................................................................................................................15
`
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`II.
`
`III.
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`B.
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`No. 3:20-cv-08570-JD
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`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 3 of 22
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`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Allied Orthopedic Appliances Inc. v. Tyco Health Care Group,
`592 F.3d 991 (9th Cir. 2010) ...................................................................................................12
`
`American Ad Management, Inc. v. General Telephone Co. of California,
`190 F.3d 1051 (9th Cir. 1999) .................................................................................................11
`
`ASARCO, LLC v. Union Pacific Railroad Co.,
`765 F.3d 999 (9th Cir. 2014) .....................................................................................................8
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................12
`
`Aspen Skiing Co. v. Aspen Skiing Highlands Corp.,
`472 U.S. 585 (1984) .................................................................................................................13
`
`Associated General Contractors of California, Inc. v. California State Council of
`Carpenters,
`459 U.S. 519 (1983) ...................................................................................................................5
`
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................................11
`
`Bird v. Department of Human Services,
`935 F.3d 738 (9th Cir. 2019) .....................................................................................................5
`
`Brantley v. NBC Universal, Inc.,
`675 F.3d 1192 (9th Cir. 2012) .......................................................................................7, 10, 14
`
`Eastman v. Quest Diagnostics Inc.,
`108 F. Supp. 3d 827 (N.D. Cal. 2015) .....................................................................................10
`
`Evans Analytical Group, Inc. v. Green Plant Farms, LLC,
`2013 WL 3963822 (N.D. Cal. July 29, 2013) ..........................................................................15
`
`Feitelson v. Google, Inc.,
`80 F. Supp. 3d 1019 (N.D. Cal. 2015) ...............................................................................11, 14
`
`FTC v. Facebook, Inc.,
`2021 WL 2643627 (D.D.C. June 28, 2021) .............................................................................13
`
`FTC v. Qualcomm Corp.,
`969 F.3d 974 (9th Cir. 2020) ...................................................................................9, 11, 13, 15
`
`Hennegan v. Pacifico Creative Service, Inc.,
`787 F.2d 1299 (9th Cir. 1986) ...................................................................................................7
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`No. 3:20-cv-08570-JD
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 4 of 22
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`
`
`Hirsh v. Martindale-Hubbell, Inc.,
`674 F.2d 1343 (9th Cir. 1982) .................................................................................................12
`
`Huynh v. Chase Manhattan Bank,
`465 F.3d 992 (9th Cir. 2006) .....................................................................................................4
`
`Jones v. Micron Technology Inc.,
`400 F. Supp. 3d 897 (N.D. Cal. 2019) .....................................................................................15
`
`Klehr v. A.O. Smith Corp.,
`521 U.S. 179 (1997) ...............................................................................................................5, 7
`
`Leegin Creative Leather Products, Inc. v. PSKS, Inc.,
`551 U.S. 877 (2007) .................................................................................................................12
`
`Liveuniverse, Inc. v. Myspace, Inc.,
`2007 WL 6865852 (C.D. Cal. June 4, 2007), aff’d, 304 F. App’x 554 (9th Cir.
`Dec. 22, 2008) ..........................................................................................................................13
`
`Los Angeles Land Co. v. Brunswick Corp.,
`6 F.3d 1422 (9th Cir. 1993) ....................................................................................................10
`
`MetroNet Services Corp. v. Qwest Corp.,
`383 F.3d 1124 (9th Cir. 2004) .................................................................................................13
`
`Midwestern Machinery Co., Inc. v. Northwest Airlines, Inc.,
`392 F.3d 265 (8th Cir. 2004) .....................................................................................................6
`
`Nacarino v. Chobani, LLC,
`2022 WL 344966 (N.D. Cal. Feb. 4, 2022) ...............................................................................8
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`New York v. Facebook, Inc.,
`549 F. Supp. 3d 6 (D.D.C. 2021) ...............................................................................................3
`
`Novell, Inc. v. Microsoft Corp.,
`731 F.3d 1064 (10th Cir. 2013) ...............................................................................................13
`
`Ohio v. American Express Co.,
`138 S. Ct. 2274 (2018) .............................................................................................................10
`
`Oliver v. SD-3C LLC,
`751 F.3d 1081 (9th Cir. 2014) ...................................................................................................4
`
`Reveal Chat Holdco LLC v. Facebook, Inc.,
`2021 WL 1615349 (N.D. Cal. Apr. 26, 2021), aff’d, 2022 WL 595696 (9th
`Cir. Feb. 28, 2022) .................................................................................................................3, 6
`
`Reveal Chat Holdco, LLC v. Facebook, Inc.,
`471 F. Supp. 3d 981 (N.D. Cal. 2020) .................................................................3, 6, 12, 13, 14
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`No. 3:20-cv-08570-JD
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`- iii -
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 5 of 22
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`Samsung Electronics Co. v. Panasonic Corp.,
`747 F.3d 1199 (9th Cir. 2014) ...........................................................................................5, 7, 9
`
`Somers v. Apple Inc.,
`729 F.3d 953 (9th Cir. 2013) ...............................................................................................9, 14
`
`TransUnion LLC v. Ramirez,
`141 S. Ct. 2190 (2021) .............................................................................................................15
`
`United States v. Microsoft Corp.,
`253 F.3d 34 (D.C. Cir. 2001) ...................................................................................................12
`
`United States v. Syufy Enterprises,
`903 F.2d 659 (9th Cir. 1990) ...................................................................................................10
`
`Verizon Commications, Inc. v. Law Offices of Curtis V. Trinko, LLP,
`540 U.S. 398 (2004) .................................................................................................................13
`
`STATUTES AND RULES
`
`Sherman Act, 15 U.S.C. §§ 1-38 ........................................................................................... Passim
`
`Fed. R. Civ. P. 12(b)(6)....................................................................................................................1
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`Fed. R. Civ. P. 15(c) ....................................................................................................................8, 9
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`OTHER AUTHORITIES
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`Reply Br. for Plaintiffs-Appellants, Reveal Chat Holdco LLC v. Meta Platforms
`Inc., No. 21-15863, 2021 WL 6102027 (9th Cir. Dec. 15, 2021), Dkt. 38 ................................6
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`No. 3:20-cv-08570-JD
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`ADVERTISERS’ AMENDED COMPLAINT
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`NOTICE OF MOTION AND MOTION
`PLEASE TAKE NOTICE THAT, on May 26, 2022 at 10:00 am in Courtroom 11 of the
`U.S. District Court for the Northern District of California, San Francisco Division, at 450 Golden
`Gate Avenue, San Francisco, CA, this Motion To Dismiss filed by Defendant Meta Platforms, Inc.
`will be heard. Pursuant to Fed. R. Civ. P. 12(b)(6), Meta moves to dismiss the First Amended
`Consolidated Advertiser Class Action Complaint in the above-captioned action. Meta’s motion is
`based on this Notice of Motion and the supporting Memorandum of Points and Authorities.1
`STATEMENT OF REQUESTED RELIEF
`Meta requests that the Court dismiss Counts I and II as to all Plaintiffs and Count III as to
`Plaintiffs Affilious, Inc., Frederick, Jeon, 406 Property Services, and Young under Rule 12(b)(6).
`MEMORANDUM OF POINTS AND AUTHORITIES2
`Claims similar to Plaintiffs’ “Copy, Acquire, Kill” theory have now been rejected as
`untimely five times, including by Judge Koh in this case and by the Ninth Circuit. “Copy, Acquire,
`Kill” is a supposed strategy whereby Meta copied rivals’ features, acquired certain apps, and
`removed third-party access to its Platform. Plaintiffs make only a half-hearted attempt to allege
`facts that would make those claims timely. Instead, they improperly advance a brand new theory
`that they call “Entry and Capture,” which allegedly involved Meta entering into agreements for
`“signals” from businesses not alleged to be in the social advertising market. Despite 900
`paragraphs of allegations, Plaintiffs’ monopolization claims remain too little, too late.
`First, both Plaintiffs’ old and new theories are time-barred. As for the old, Plaintiffs have
`added a handful of more recent allegations regarding the “Copy, Acquire, Kill” scheme. But they
`still have not identified any overt act within the limitations period that (a) inflicted a new and
`accumulating injury on them and (b) was not merely a reaffirmation of an act outside the
`limitations period. The new “Entry and Capture” allegations likewise cannot resurrect the “Copy,
`
`1 On March 21, 2022, the day of this filing, the Judicial Panel on Multidistrict Litigation issued an
`order conditionally transferring Advertiser Plaintiffs’ action to the In re Google Digital
`Advertising Litigation MDL pending in the Southern District of New York. MDL No. 3010, Dkt.
`169 (J.P.M.L. Mar. 21, 2022). As that order is not yet effective, Meta proceeds with filing its
`Motion before this Court as scheduled.
`2 For purposes of this Motion only, Meta accepts non-conclusory factual allegations as true.
`No. 3:20-cv-08570-JD
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 7 of 22
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`Acquire, Kill” theory, because “Entry and Capture” and “Copy, Acquire, Kill” are distinct schemes
`that do not constitute a single, continuing violation. Evaluated on its own (as it should be), the
`“Entry and Capture” theory is untimely on its face. The applicable four-year statute of limitations
`runs from the filing of the new complaint; it does not relate back to the original complaint. The
`conduct alleged to be a part of “Entry and Capture” began more than four years before the amended
`complaint was filed, and that scheme’s alleged later-in-time components were simply
`reaffirmations of that untimely conduct that did not inflict a new injury on Plaintiffs. Plaintiffs thus
`fail to allege a continuing violation and their Section 2 claims remain tardy.
`Second, even if timely, Plaintiffs’ Section 2 claims must be dismissed because none of the
`challenged conduct is exclusionary as a matter of law. Plaintiffs’ “Entry and Capture” theory
`challenges vertical agreements that did not plausibly restrain competition in the social advertising
`market. There are no allegations that these agreements foreclosed others’ access to data, were
`exclusive, or restrained other companies’ ability to enter the market or build competitive products.
`The closest Plaintiffs come to alleging any competitive effects in the relevant market at all is the
`allegation that these vertical agreements improved the quality of the advertising Plaintiffs bought,
`making it harder for others to compete. Even a purported monopolist is free to make its products
`more appealing without running afoul of the antitrust laws. For the same reason, Plaintiffs have
`failed to offer a cogent, let alone cognizable, theory to explain how Meta’s alleged use of an
`application called Onavo to improve its ad targeting is anticompetitive. The remaining conduct
`alleged—nothing more than the old “Copy, Acquire, Kill” claims—fares no better. “Copy,
`Acquire, Kill” remains largely premised on a noncognizable theory that Meta refused to deal with
`app developers. Even beyond that, Plaintiffs never plausibly allege that any of Meta’s alleged
`conduct impeded viable competition in Plaintiffs’ purported Social Advertising market.
`Finally, Plaintiffs do not, and cannot, allege that the “Entry and Capture” agreements
`violate Section 1. Judge Koh did not grant leave to amend that claim, and any Section 1 claim
`challenging those agreements would fail as a matter of law for the same reason as Plaintiffs’
`Section 2 claim challenging them. Separately, Plaintiffs’ standalone Section 1 claim based solely
`on the September 2018 Google Network Bidding Agreement (GNBA) must be dismissed for lack
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`No. 3:20-cv-08570-JD
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`-2-
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 8 of 22
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`of constitutional and statutory standing as to the Plaintiffs who did not purchase advertising after
`the agreement was entered into.
`For these reasons, Counts I and II should be dismissed again, this time with prejudice.
`Count III must also be dismissed as to all but two of the named Plaintiffs because they were not—
`and could not be—injured by the challenged agreement.
`RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
`The Plaintiffs here are individuals and entities who purchased advertising from Meta. First
`Amended Consolidated Advertiser Class Action Complaint (“FAC”) ¶ 1. Plaintiffs allege that
`Meta unlawfully maintained monopoly power in a purported “Social Advertising Market.” Id.
`¶¶ 31, 37. According to the initial complaint, Meta used an app called Onavo to collect information
`about social media applications. Dkt. 214 at 70. Armed with that data, Meta “enticed … potential
`competitors to build their products using [Meta’s] ‘Platform’ then removed access to the
`Platform,” allowing only certain apps continued access through “Datasharing Agreements”;
`“copied … potential competitors’ products”; and “acquired numerous potential competitors”
`(including Instagram and WhatsApp). Id. at 70, 76-80, 86.
`Judge Koh dismissed the “Copy, Acquire, Kill” claims as untimely. The Court explained
`that because this scheme allegedly started outside the limitations period, Plaintiffs had to identify
`“at least one ‘overt act’ that was part of [Meta’s] ‘Copy, Acquire, Kill’ strategy [that] occurred
`after December 3, 2016,” which Plaintiffs failed to do. Id. at 88-94. The same or similar claim has
`been repeatedly and consistently dismissed as untimely. See Reveal Chat Holdco LLC v. Facebook,
`Inc., 2021 WL 1615349 (N.D. Cal. Apr. 26, 2021) (“Reveal Chat II”), aff’d 2022 WL 595696 (9th
`Cir. Feb. 28, 2022) (“Reveal Chat III”); Reveal Chat Holdco, LLC v. Facebook, Inc., 471 F. Supp.
`3d 981 (N.D. Cal. 2020) (“Reveal Chat I”); New York v. Facebook, Inc., 549 F. Supp. 3d 6 (D.D.C.
`2021). Judge Koh also held that Plaintiffs did not adequately allege tolling under the fraudulent
`concealment doctrine. Dkt. 214 at 96. Judge Koh granted Plaintiffs leave to amend their “Copy,
`Acquire, Kill” claims, but her order required Plaintiffs to obtain leave of Court to allege any new
`claims. Id. at 107.
`Plaintiffs have deleted the fraudulent concealment allegations from their FAC. Instead,
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`No. 3:20-cv-08570-JD
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`-3-
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 9 of 22
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`they seek to make the theory timely by alleging that three post-2016 acts furthered “Copy, Acquire,
`Kill.” First, Plaintiffs allege that Meta continued to enter into datasharing agreements, pursuant to
`which Meta allegedly obtained non-exclusive licenses for data in exchange for access to its
`Platform. FAC ¶¶ 302-315 (describing agreements entered into between late 2016 and May 2019).
`Second, Plaintiffs allege that Meta continued using Onavo to collect information about popular
`social media applications. Id. ¶¶ 555-569. Third, Plaintiffs allege that, in early 2019, Meta
`continued to integrate previously acquired Instagram and WhatsApp. Id. ¶¶ 706-724, 762-763.
`The FAC also alleges an entirely new theory of Section 2 liability. According to Plaintiffs’
`revised theory of the case, “Copy, Acquire, Kill”—rebranded as the “Platform scheme”—failed,
`depriving Meta of data. See, e.g., FAC ¶¶ 303, 352. So, Plaintiffs now say, Meta implemented the
`new “Entry and Capture” strategy between 2016 and 2018 to obtain social data “signals.” Id. ¶ 415.
`This scheme allegedly involved Meta “introducing directly competitive products in key sub-
`verticals, including e-commerce, location-based services, and longform video.” Id. ¶ 400. Meta
`then “leveraged” its “entrance” into these “sub-verticals,” id. ¶ 415, by agreeing not to “compete”
`in those “sub-verticals” in exchange for non-exclusive access to ad-targeting data, see id. ¶¶ 417,
`425, 472, 536. And Meta used the data received to improve its advertising products. See id. ¶¶ 423,
`454, 468, 472, 513. Meanwhile, Meta allegedly collected user data through Onavo to improve
`advertising quality. See, e.g., id. ¶¶ 537, 559-561, 823.
`ARGUMENT
`PLAINTIFFS’ CLAIMS ARE STILL TIME-BARRED
`Judge Koh granted Plaintiffs another opportunity to demonstrate that their “Copy, Acquire,
`Kill” claims are timely. They have not done so. The running of the four-year statute of limitations
`is “apparent on the face of the complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997
`(9th Cir. 2006). The same is true for the new “Entry and Capture” theory.3 Their claims should be
`dismissed as time-barred.
`
`I.
`
`
`3 Plaintiffs have abandoned their claims for injunctive relief. See FAC at pp. 204-205. To the extent
`they continue to seek other forms of equitable relief, id., those claims are barred by laches for the
`same reasons their damages claims are untimely. Oliver v. SD-3C LLC, 751 F.3d 1081, 1086 (9th
`Cir. 2014) (when “applying laches” in antitrust cases, courts “look to the same legal rules that
`animate the four-year statute of limitations”).
`No. 3:20-cv-08570-JD
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`-4-
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 10 of 22
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`Plaintiffs’ “Copy, Acquire, Kill” Claims Remain Untimely
`Plaintiffs continue to challenge the acquisitions of Instagram in 2012 and WhatsApp in
`2014, the use of Onavo starting in 2011, changes to Facebook’s Platform policies in 2015, and
`datasharing agreements that followed the 2015 Platform policy changes—all of which are outside
`the statute of limitations. Absent tolling, which Plaintiffs do not allege, the only way for such
`claims to be timely is if they are part of a “continuing violation” with “at least one ‘overt act’…
`after December 3, 2016.” Dkt. 214 at 88; Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d 1199,
`1202 (9th Cir. 2014).4 That overt act “must be a new and independent act that is not merely a
`reaffirmation of a previous act” and “must inflict new and accumulating injury on the plaintiff.”
`Samsung, 747 F.3d at 1202. The post-2016 conduct alleged in the FAC does not meet that standard.
`The alleged integration of Instagram and WhatsApp, continued use of Onavo, and entry into later
`datasharing agreements either reaffirmed prior acts outside the statute of limitations or did not
`“inflict new and accumulating injury” on Plaintiffs. Id.
`First, Plaintiffs cannot use the 2019 software integration to bootstrap their untimely
`challenge to the acquisitions because the integration did not inflict new injury on Plaintiffs and is
`nothing more than a reaffirmation of the underlying acquisitions. To begin, Plaintiffs nowhere
`plausibly allege how backend software integration of long-ago acquired assets had any impact on
`Meta’s advertising prices. Both Instagram and WhatsApp ceased to be independent when they
`were acquired years earlier (outside the limitations period).5 Thus, there is no new injury.
`
`
`4 For purposes of this motion, Meta accepts Judge Koh’s ruling that plaintiffs could theoretically
`plead timely claims under the so-called continuing violation doctrine. But Meta reserves the right
`to argue on appeal that the continuing violation theory is not viable. Bird v. Department of Human
`Servs., 935 F.3d 738, 746-748 (9th Cir. 2019). At most, the doctrine allows Plaintiffs to recover
`damages for acts occurring inside the limitations period. See Klehr v. A.O. Smith Corp., 521 U.S.
`179, 189 (1997) (“[T]he commission of a separate new overt act generally does not permit the
`plaintiff to recover for the injury caused by old overt acts outside the limitations period.”).
`5 Plaintiffs make much of the alleged effect of the integration on the ability of other litigants to
`“break up” Meta. See, e.g., FAC ¶ 662. If Plaintiffs’ argument is that they were injured because
`Meta has made it harder for it to be broken up if the FTC succeeds in its belated challenge to those
`acquisitions, which will not be scheduled for trial before 2024 at the earliest, that supposed injury
`is far too speculative to be cognizable (if such a theory could ever be cognizable). See Associated
`General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519,
`543 (1983) (rejecting antitrust injury theory based on “nothing but speculation”).
`No. 3:20-cv-08570-JD
`-5-
`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 11 of 22
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`Moreover, the integration is simply an “unabated intertial consequence[]” of the initial acquisitions
`of Instagram and WhatsApp, which occurred in 2012 and 2014 and caused no new harm to any
`advertiser. Midwestern Machinery Co. v. Northwest Airlines, Inc., 392 F.3d 265, 270 (8th Cir.
`2004). Indeed, the Ninth Circuit recently dismissed Section 2 claims alleging that the exact same
`conduct “harm[ed] competition in the … Social Advertising market[].” Reply Br. for Plaintiffs-
`Appellants, Reveal Chat III, 2021 WL 6102027, at *16 (9th Cir. Dec. 15, 2021), Dkt. 38; see
`Reveal Chat III, 2022 WL 595696. As there, any effect of the integration on Plaintiffs was simply
`“part and parcel of acquiring a company.” Reveal Chat I, 471 F. Supp. 3d at 991-992.
`Second, the supposed continued use of Onavo to gather information about “what apps users
`were spending time on and engaging with,” e.g., FAC ¶ 559, is likewise a mere reaffirmation of
`the pre-limitations conduct that caused no new injury, as part of an overall course of conduct not
`plausibly alleged to have caused Plaintiffs any antitrust injury. Plaintiffs admit as much, alleging
`that “[s]ince 2011 and through the present,” Meta has used Onavo to obtain “real time data about
`mobile users,” id. ¶ 234, and claiming that Meta has used “its Onavo code in similar ways since at
`least 2016,” id. ¶ 240. As in the previous complaint and prior cases finding these allegations
`untimely, the alleged mechanism of harm is the same throughout the course of conduct: Onavo
`supposedly gave Meta information about “potential competitive threats as well as the information
`and time [Meta’s] own users contributed to those threatening apps,” allowing Meta to “fortif[y]”
`barriers to entry in the social advertising market. See, e.g., id. ¶¶ 555-569. These conclusory
`allegations of continued use identify no new and accumulating injury to Plaintiffs, particularly
`since the FAC does not challenge any acquisitions made based on this data other than those falling
`outside the limitations period (e.g., WhatsApp in 2014). See, e.g., Reveal Chat II, 2021 WL
`1615349, at *5 (claims based on Meta having “continued to operate … Onavo … as part of its
`scheme to prevent the advent of a rival social advertising platform” are untimely).
`Third, the additional datasharing agreements Plaintiffs claim Meta entered into to obtain
`data from other companies after 2016, see, e.g., FAC ¶ 308, cannot amount to a “continuing
`violation.” As alleged, these agreements were a reaffirmation of alleged conduct that began in
`2015. Plaintiffs never suggest otherwise, characterizing the agreements as an ongoing consequence
`
`No. 3:20-cv-08570-JD
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`-6-
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
`
`

`

`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 12 of 22
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`of the 2015 Platform deprecation. See, e.g., id. ¶ 306 (stating that Meta “would simply keep
`negotiating whitelist agreements” to obtain data lost through deprecation); ¶ 311 (describing the
`agreements as part of the “Platform scheme”); ¶ 830 (alleging a single “series” of agreements
`resulting from Meta “scuttling its Platform”). Thus, they are part of the same allegedly
`exclusionary “Platform Scheme” already found to be time-barred. Further, Plaintiffs have never
`plausibly alleged that datasharing agreements like these caused them any harm, much less the “new
`and accumulating” harm that the law requires. Nor could they. As alleged, these agreements
`improved Meta’s ability to target advertisements on behalf of Plaintiffs and other advertisers and
`are not alleged to have harmed competition in social advertising. See, e.g., id. ¶ 311 (agreements
`“provide[d] Facebook with event-related social data” for its social advertising business). These
`agreements were “non-exclusive,” meaning signatories were free to acquire data from or provide
`data to other sources. See id. ¶ 308 (agreements “granted Facebook ‘a non-exclsuive, transferable,
`sub-licensable, royalty-free worldwide license to use” certain data). That precludes finding any
`cognizable injury, let alone a new one. See Brantley v. NBC Universal, Inc., 675 F.3d 1192, 1198
`(9th Cir. 2012) (non-exclusive vertical contracts unlawful if they “foreclose competitors from
`entering or competing” or “facilitat[e] horizontal collusion”).
`Finally, the newly alleged “Entry and Capture” scheme does nothing to change the
`conclusion that Plaintiffs’ “Copy, Acquire, Kill” claims are untimely. Within limitations period
`conduct can revive only claims based on the same, ongoing violation of the antitrust laws.
`Samsung, 747 F.3d at 1202; see also Dkt. 214 at 88 (Plaintiffs “must allege that at least one ‘overt
`act’ that was part of Facebook’s ‘Copy, Acquire, Kill’ strategy occurred after December 3, 2016”
`(emphasis added)). Later acts must be “part of the violation,” and “the commission of a separate
`new overt act generally does not” revive claims premised on earlier conduct. Klehr, 521 U.S. at
`189 (collecting cases). Here, Plaintiffs themselves allege that “Entry and Capture” was devised
`after “Copy, Acquire, Kill” proved unsuccessful and “sunsetted.” See, e.g., FAC ¶¶ 347, 399, 411.
`As such, “Entry and Capture” as alleged was a distinct scheme and not an act in furtherance of the
`alleged “Copy, Acquire, Kill” scheme. See Hennegan v. Pacifico Creative Serv., Inc., 787 F.2d
`1299, 1301 (9th Cir. 1986) (new acts must be “in furtherance of” the overall scheme).
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`No. 3:20-cv-08570-JD
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`-7-
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`META’S MOTION TO DISMISS
`ADVERTISERS’ AMENDED COMPLAINT
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`

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`Case 3:20-cv-08570-JD Document 262 Filed 03/21/22 Page 13 of 22
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`The New “Entry and Capture” Theory Is Untimely and Unauthorize