Case 1:20-cv-03589-JEB Document 137 Filed 06/28/21 Page 1 of 67
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`
`STATE OF NEW YORK, et al.,
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` Plaintiffs,
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`
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`
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`v.
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` Civil Action No. 20-3589 (JEB)
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`FACEBOOK, INC.,
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`Defendant.
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`
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`
`
`MEMORANDUM OPINION
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`As the pillars of our national economy have shifted from the concrete to the virtual, so
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`too have the targets of government antitrust actions. Where railroads and oil companies were
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`alleged to be early violators, over the past decades, providers of telecommunications (AT&T)
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`and computer operating systems (Microsoft) have been the defendants. In the internet age, not
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`surprisingly, Facebook finds itself in the spotlight, as both federal and state regulators contend,
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`in two separate actions before this Court, that it is now the one violating the antitrust laws. The
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`company, they allege, has long had a monopoly in the market for what they call “Personal Social
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`Networking Services.” And it has allegedly maintained that monopoly, in violation of Section 2
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`of the Sherman Act, through two different kinds of actions: first, by acquiring firms that it
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`believed were well positioned to erode its dominance — most notably, Instagram and WhatsApp;
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`and second, by adopting policies preventing interoperability between Facebook and certain other
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`apps that it saw as threats, thereby impeding their growth into viable competitors. The State
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`Plaintiffs in this action further contend that Facebook’s purchases of Instagram and WhatsApp
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`violated Section 7 of the Clayton Act, which prohibits acquisitions “the effect of [which] may be
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`substantially to lessen competition, or to tend to create a monopoly.” 15 U.S.C. § 18. Both suits
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`seek equitable remedies for these alleged antitrust violations, including forced “divestiture or
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`reconstruction of illegally acquired businesses and/or divestiture of Facebook assets or business
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`lines.” ECF No. 4 (Redacted Compl.) at 75. (The Court cites a version of the States’ Complaint
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`that has minor redactions to protect confidential business information, and it mentions certain
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`redacted facts only with the parties’ permission.)
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`Facebook now separately moves to dismiss both actions. This Opinion resolves its
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`Motion as to the States’ Complaint, and the Court analyzes the Federal Trade Commission’s
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`largely parallel claims in its separate Opinion in No. 20-3590. Although the Court does not
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`agree with all of Defendant’s contentions here, it ultimately concurs with Facebook’s bottom-
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`line conclusion: none of the States’ claims may go forward. That is so for two main reasons.
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`First, the States’ Section 2 and Section 7 attacks on Facebook’s acquisitions are barred by
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`the doctrine of laches, which precludes relief for those who sleep on their rights. Although
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`Defendant purchased Instagram in 2012 and WhatsApp in 2014, Plaintiffs’ suit — which seeks,
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`in the main, to have Facebook divest one or both companies — was not filed until December
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`2020. The Court is aware of no case, and Plaintiffs provide none, where such a long delay in
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`seeking such a consequential remedy has been countenanced in a case brought by a plaintiff
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`other than the federal government, against which laches does not apply and to which the federal
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`antitrust laws grant unique authority as sovereign law enforcer. If laches is to mean anything, it
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`must apply on these facts, even in a suit brought by states.
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`Second, the States’ Section 2 challenge to Facebook’s policy of preventing
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`interoperability with competing apps fails to state a claim under current antitrust law, as there is
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`nothing unlawful about having such a policy. While it is possible that Facebook’s
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`implementation of that policy as to certain specific competitor apps may have violated Section 2,
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`the Court does not reach that question because all such revocations of access occurred over five
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`years before the filing of the Complaint. Such long-past violations cannot furnish a basis for the
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`injunctive relief that Plaintiffs seek here.
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`The Court, consequently, will grant Facebook’s Motion and dismiss the case.
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`Table of Contents
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`I. Background ............................................................................................................................. 5
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`A. Social Networking .............................................................................................................. 5
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`B. Facebook Blue .................................................................................................................... 6
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`C. Alleged Monopoly Maintenance......................................................................................... 7
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` Acquisitions .................................................................................................................... 8
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`Interoperability Permissions ......................................................................................... 11
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`a. Facebook Platform .................................................................................................... 11
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`b. Conditioning Access ................................................................................................. 13
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`D. Procedural History ............................................................................................................ 15
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`II. Legal Standard ...................................................................................................................... 17
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`III. Analysis ................................................................................................................................. 17
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`A. Standing ............................................................................................................................ 18
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`B. Platform Policies ............................................................................................................... 21
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` Refusal to Deal .............................................................................................................. 23
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`a. Legal Framework ...................................................................................................... 23
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`b. Application ................................................................................................................ 28
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`i.
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`Facebook Policies ................................................................................................. 28
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`ii. Specific Refusals ................................................................................................... 31
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` Conditional Dealing ...................................................................................................... 35
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`C. Acquisitions ...................................................................................................................... 40
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` Legal Framework .......................................................................................................... 40
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` Application .................................................................................................................... 43
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` Counterarguments ......................................................................................................... 47
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`a. Applicability of Laches ............................................................................................. 47
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`b. Ongoing Violation .................................................................................................... 51
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`c. Prospective Relief ..................................................................................................... 57
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`d. Course of Conduct .................................................................................................... 58
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`e. Procedural Posture .................................................................................................... 65
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`IV. Conclusion ............................................................................................................................ 67
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`I.
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`Background
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`A. Social Networking
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`At the dawn of our century, in the much earlier days of the internet, a number of websites
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`began to offer services that, in hindsight, were precursors to the sort that Facebook provides.
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`Those websites provided users a platform for creating a unique webpage, personalized with
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`photos and messages, that could then be used to interact with the pages of other “friends.” See
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`Redacted Compl., ¶ 58. Interactions were initially limited to email, using services such as
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`America Online (AOL). Id., ¶¶ 58–59. Eventually, new online services emerged that allowed
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`users to organize their profiles into a specific network and communicate with that network, such
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`as Classmates.com and SixDegrees.com. Id., ¶ 59. Friendster and Myspace, both launched in
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`2002, built further on this trend, offering the first of what came to be known as “social
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`networking” services. Id., ¶ 60. Although the precise definition of a “Personal Social
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`Networking Service” (the main market in which Facebook allegedly operates) is disputed, it can
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`be summarized here as one that enables users to virtually connect with others in their network
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`and to digitally share their views and experiences by posting about them in a shared, virtual
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`social space. Id., ¶¶ 1, 28, 70. For example, users might view and interact with a letter-to-the-
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`editor-style post on politics by a neighbor, pictures from a friend’s recent party, or a birth
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`announcement for a newborn cousin. Id., ¶¶ 1, 70.
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`Perhaps because humans are naturally social, this new way of interacting became hugely
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`popular. In 2006, Myspace, at one point the leading social network, “overtook Google as the
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`most-visited website in the world.” Id., ¶ 60. By 2008, however, it had been surpassed by a new
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`competitor: Facebook. Id., ¶ 66. Launched in 2004 by then-undergraduate Mark Zuckerberg
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`from his Harvard dorm room, “The Facebook,” as it was initially called, was a social-networking
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`service initially limited to Harvard students. Id., ¶ 61. Encouraged by its success on campus,
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`Zuckerberg and some fellow students expanded the product to other universities, where it proved
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`similarly popular. Id., ¶¶ 62–63. That growth led Facebook to expand beyond colleges, first to
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`high schools and then to the larger adult population. Id., ¶¶ 64–66. By 2008, it had 120 million
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`active users globally. Id., ¶ 66. Three years later, it had 156 million active users in the United
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`States alone, with each user averaging over seven hours per month. Id. The following details of
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`Facebook’s conduct are drawn from the States’ Complaint, as the Court must consider its
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`allegations true at this stage. The allegations are quite similar, though not identical, to those
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`made by the FTC in the parallel case and recounted in the Court’s companion Opinion.
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`B. Facebook Blue
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`Facebook’s “core” social-network product is known as “Facebook Blue.” Id., ¶ 71. This
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`is what its millions of users think of when they think of “Facebook.” Generally speaking, using
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`Facebook Blue entails interacting with “user-created content,” — i.e., content created or shared
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`by one’s Facebook “friends,” id., ¶ 30 — or creating content oneself by posting. That is not all
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`that users see or do, however. Users, for instance, also encounter “publisher-created content like
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`news articles . . . and advertisements,” id., “interspers[ed]” in their “news feed.” Id., ¶¶ 30, 49,
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`54. Such content can come in text, photo, or video form. Id., ¶ 49. In addition, Facebook users
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`can play games or use other applications built either by Facebook or by third parties. Id., ¶¶ 80,
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`152, 190. Facebook also offers other services beyond Facebook Blue to its users, such as
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`Facebook Messenger, a free mobile-messaging and voice-calling service. Id., ¶¶ 71, 159, 209.
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`Unlike most businesses, Facebook charges users no fee; instead, it makes money by
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`selling advertising. Id., ¶¶ 2–3. By leveraging the “vast trove of data it has collected on users,
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`their friends, and their interests,” the company is able to offer advertisers a “highly targeted” set
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`of potential customers distilled from its “massive network of users.” Id., ¶¶ 3, 51. Under this
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`business model, as the States’ Complaint puts it, “Users do not pay a cash price to use
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`Facebook”; instead, “they exchange their time, attention, and personal data for access to
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`Facebook’s services.” Id., ¶¶ 2, 46. That approach has been highly profitable: in 2019, for
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`instance, advertisers paid Facebook nearly $30 billion. Id., ¶ 48. To be clear, although
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`Facebook’s data-collection and -use practices have been subject to increasing scrutiny, they are
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`not the subject of this action.
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`C. Alleged Monopoly Maintenance
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`Instead, this suit alleges that Facebook has violated and is violating the antitrust laws, the
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`focus of which, generally speaking, is to promote and ensure competition. According to
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`Plaintiffs, Facebook Blue’s meteoric rise was a positive example of what happens when firms
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`compete to provide the best product to consumers. Because its social-networking service
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`provided more “innovative features,” “a higher-quality user experience, and better privacy
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`protections” than anyone else, id., ¶ 73, at least as early as 2011, it had become the dominant
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`personal social networking service” in this country, giving Facebook “monopoly power” in that
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`market. Id., ¶¶ 4, 11, 68.
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`Around that time, however, Facebook allegedly made a fateful pivot: rather than
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`continuing to focus on providing the best product, it became concerned with protecting its
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`monopoly by leveraging its dominance to foreclose and forestall the rise of new competitors. Id.,
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`¶¶ 98–99. In particular, the company’s executives saw a “unique threat[] to Facebook’s
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`dominance” in the advent of mobile devices — first and foremost, smartphones — capable of
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`accessing the internet. Id., ¶¶ 100–01. Although Facebook had mobile functionality, it had been
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`built with websites and desktop or laptop computers in mind. Other firms’ offerings, by contrast,
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`were “built to look and function well on a mobile device in the first instance.” Id., ¶ 100.
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`Zuckerberg and other Facebook executives fretted over the possibility that other apps might
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`create attractive mobile-native features and then leverage those features into exponential user
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`growth, end-running Facebook’s established position. Id., ¶¶ 101–02. Even if such an app was
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`not already providing social-network-like functionality, once it had a big enough base of users, it
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`would still pose a potential threat to Facebook Blue. Id. Facebook executives feared fast-
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`growing mobile-messaging services in particular, nervous that such apps could rather easily
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`“morph[]” into direct competitors by adding social features. Id., ¶ 103.
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`What Facebook did in response to these perceived threats is the basis for these antitrust
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`suits against it. The company allegedly used its monopoly power to eliminate or destroy
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`competitors in order to maintain its market dominance. Id., ¶ 104. Plaintiffs allege that,
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`beginning around 2011, “Facebook used two primary tactics to achieve” that result. Id. First, it
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`reached deep into its very deep pockets to acquire competitors and potential competitors,
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`preventing their emergence as serious rivals. Id. Second, it adopted and then enforced policies
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`that blocked rival apps from interconnecting their product with Facebook Blue, thereby both (i)
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`blunting the growth of apps that had previously depended on that interoperability to attract new
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`users, and (ii) warning all other developers not to compete with Facebook, lest they lose access
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`as well. Id.; see also id., ¶¶ 186–87.
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` Acquisitions
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`On the acquisitions front, “Facebook acquired dozens of companies” from 2012 to 2020,
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`and it “pursued many more acquisitions that did not come to fruition.” Id., ¶ 105. Among those
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`“dozens” were many minor companies; the Complaint briefly mentions Glancee and EyeGroove,
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`firms Facebook purchased in 2012 and 2016, respectively. Id., ¶ 184. Rather than catalog each
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`acquisition (some of which, presumably, posed no threat to competition), Plaintiffs focus almost
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`exclusively on several key examples that purportedly illustrate Facebook’s allegedly
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`anticompetitive approach: its purchases of Instagram (2012) and WhatsApp (2014), and its
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`ultimately unsuccessful attempts to buy Snapchat (2012–13). Id., ¶¶ 107–80.
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`Begin with Insta, as those in the know — viz., our children — refer to it. Launched in
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`late 2010, Instagram was an innovative photo-editing and -sharing app designed for the era of
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`smartphones with built-in cameras. Id., ¶¶ 107, 109. The company grew explosively, eventually
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`attracting the attention of Facebook executives who feared that their own photo-sharing features
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`paled in comparison. Id., ¶¶ 111, 113. That disparity gave Instagram a chance to grow to a large
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`enough scale to be threatening, making it a “powerful competitive threat to Facebook’s . . .
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`monopoly.” Id., ¶ 128. Aiming to “neutralize” that competition, and to “integrate” the
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`“mechanics” of Instagram’s popular photo-sharing features with Facebook Blue in order to
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`forestall the growth of future Instagrams, id., ¶ 115, Zuckerberg offered to buy the company for
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`$1 billion in April 2012. Id., ¶ 119. Instagram agreed.
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`As required by the Hart-Scott-Rodino Act, 15 U.S.C. § 18a, the FTC reviewed the
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`acquisition prior to closing to assess whether it posed anticompetitive concerns. Whereas most
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`mergers are cleared quickly, in this instance the review took over four months. During that
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`scrutiny, the agency took the rare step of “requir[ing] the submission [by the parties] of
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`additional information or documentary material relevant to the proposed acquisition.” 15 U.S.C.
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`§ 18a(e)(1)(A). Eventually, however, Facebook and Instagram satisfied the agency’s concerns,
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`and in August (over four months after the merger was announced), the Commission voted 5–0 to
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`allow it to proceed without any challenge or conditions. See FTC, FTC Closes Its Investigation
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`into Facebook’s Proposed Acquisition of Instagram Photo Sharing Program (Aug. 22, 2012),
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`https://bit.ly/3bDa2mp. Although Plaintiffs do not mention that prolonged FTC review in their
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`Complaint, the Court may take judicial notice of that agency action. See Pharm. Rsch. &
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`Manufacturers of Am. v. U.S. Dep’t of Health & Hum. Servs., 43 F. Supp. 3d 28, 33 (D.D.C.
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`2014); Herron v. Fannie Mae, No. 10-943, 2012 WL 13042852, at *1 (D.D.C. Mar. 28, 2012).
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`Zuckerberg, Plaintiffs allege, had similar designs in offering to buy Snapchat in October
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`2013. Id., ¶¶ 131, 134. That app also involved photo-sharing, with the twist that images would
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`usually be sent one-to-one or one-to-small-group, rather than to a user’s entire network, and
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`would automatically delete after being viewed for only a few seconds. Id., ¶ 130. Impressed by
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`the app’s engagement and user growth, Facebook offered to purchase it for $4 billion — mainly,
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`allege Plaintiffs, to “keep[] [it] out of the hands of any firm with the resources to transform [it]
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`into a major competitive threat.” Id., ¶ 134. Snapchat’s founder, however, steadfastly refused
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`the overtures. Id., ¶ 135.
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`Facebook had better luck the next year with WhatsApp. As noted above, the company’s
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`executives saw mobile-messaging apps like WhatsApp as their “biggest competitive threat,”
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`even though they did not directly compete with Facebook Blue in the Personal Social
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`Networking Services market. Id., ¶ 153. The fear instead was that such apps might well
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`“morph” into competitors in the future; given the ubiquity of text messaging in modern life, a
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`widely adopted messaging app could leverage its network effects to transition into a highly
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`competitive “mobile-first social network” by adding functions such as “gaming platforms,
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`profiles, and news feeds.” Id., ¶¶ 152–53, 160. WhatsApp was the most potent threat, according
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`to Facebook executives, because it was the “category leader” among mobile messengers, with
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`over 400 million active users and a superior product. Id., ¶¶ 154–55. Zuckerberg in particular
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`“believe[d] that WhatsApp had the potential to enter Facebook’s core market and erode its
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`monopoly power,” and he thus resolved to try to buy it to prevent that from happening. Id.,
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`¶ 161. In February 2014, after negotiating specific terms regarding WhatsApp’s continued
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`independence, user privacy, and freedom from ads, he succeeded, as the two companies agreed
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`on a purchase price of around $19 billion. Id., ¶¶ 165–66. That transaction was also subject to
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`Hart-Scott-Rodino Act pre-merger review, see 15 U.S.C. § 18a, but the FTC, once again, did not
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`block it.
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` Interoperability Permissions
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`a. Facebook Platform
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`Shortly after expanding beyond colleges and high schools, Facebook developed
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`Facebook Platform, a set of tools designed to enable developers of other mobile or web apps to
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`interoperate with Facebook’s site and data. See Redacted Compl., ¶ 80. The goal was to make
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`Facebook the “platform” for all social interactions on the internet, thereby creating a better, more
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`engaging product and driving even more users to its site. Id. The first iteration of Facebook
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`Platform, circa 2007, allowed developers to build what Facebook called “canvas” apps displayed
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`within the Facebook website itself. Id., ¶ 190. As an example, a user scrolling through
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`Facebook could come upon a personality-test app, take the test, and then share her results and
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`invite Facebook friends to take the test as well, all without ever navigating off the Facebook site.
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`Id. Facebook made these third-party apps available to users “on a level playing field with
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`applications built by Facebook.” Id., ¶ 189. App developers took advantage, scrambling to
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`create these canvas apps in order to gain access to its growing network of users. Id., ¶¶ 80, 189–
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`94. Such apps would make money by allowing users to purchase virtual goods or items within
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`the app on a “freemium” model or via ad sales.
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`Facebook soon expanded Platform, deploying a suite of tools that expanded its reach off
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`the Facebook site itself. These tools — called application programming interfaces or APIs —
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`created mechanisms for sharing data between Facebook and other services. Id., ¶ 80. The States
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`provide several examples of APIs that Facebook opened to developers. One is the “Find
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`Friends” API, id., ¶ 190, which enabled freestanding apps to allow Facebook account holders to
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`find and connect with Facebook friends within that separate app, or to invite Facebook friends to
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`join that app. Id., ¶¶ 207, 210, 214–15, 217. For instance, when first starting to use an
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`independent chess app — i.e., an app used separately as opposed to on the Facebook site itself —
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`a user with a Facebook account could nonetheless search within the app for other Facebook
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`friends already using it, or invite them to join via Facebook, all without leaving the app. Another
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`API Facebook created was Facebook Connect, which allowed Facebook users to sign into third-
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`party websites or apps using their Facebook log-in credentials. Id., ¶ 81.
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`Facebook went even further in that direction in 2010 when it launched its Open Graph
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`API. Open Graph allowed third-party apps and websites to essentially integrate pieces of
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`Facebook within their own service; for instance, apps could install the famous “Like” button,
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`which, if clicked, would share a user’s “like” on the user’s Facebook profile. Id., ¶ 82. Users
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`could do this without even navigating away from the third-party service. Id., ¶¶ 191–93. “[A]
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`user reading an article on ESPN.com,” for instance, “could now like an article on ESPN’s site,
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`and choose to post a link of the article to the user’s Facebook profile directly from the
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`ESPN.com website.” Id., ¶ 193. App developers could also host Facebook comment sections,
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`facilitating further engagement with their content. Id., ¶ 194. This was, unsurprisingly, a
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`massively popular tool among app developers. By May 2013, over 10 million apps and websites
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`had used the Open Graph API to integrate with Facebook, and Facebook “integrations quickly
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`became common across the internet.” Id.
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`According to Plaintiffs, Facebook benefited significantly from its Platform program and
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`open APIs. The company garnered goodwill and positive media coverage, continued to increase
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`its growth and user engagement, and earned substantial sums from its requirement that partner
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`third-party apps share revenues from in-app purchases. Id., ¶¶ 195–96. Third-party app
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`developers likewise gained, improving the quality of users’ experience by integrating social
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`functionality and benefiting from Facebook’s sizeable network of highly engaged users. Id.,
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`¶ 197. Users, too, enjoyed the increased efficiency and convenience. Id., ¶ 198.
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`b. Conditioning Access
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`Nonetheless, the States allege, Facebook eventually “turned to Platform as a tool to
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`monitor, leverage,” and — most crucially here — “harm (via rescinding API access [to]) apps
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`that Facebook viewed as actual or potential competitive threats.” Id., ¶ 200. In 2011, it
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`announced a company policy that allegedly “aimed at forbidding ‘competing social platforms,’
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`and any apps that linked or integrated with competing social platforms, from accessing its APIs.”
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`Id., ¶ 199. In 2013, Facebook announced an even broader policy of withholding API access from
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`apps that competed by “replicat[ing] [Facebook’s] core functionality,” even if they were not full
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`social networks. Id., ¶ 201.
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`To the extent the States allege that Facebook’s 2011 policy actually prohibited — as
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`opposed to merely “aim[ed] at” prohibiting, as is the precise wording of the allegation —
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`freestanding third-party apps from accessing its APIs merely because those apps also “linked to
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`or integrated with” other social-networking services, the Court does not accept that
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`characterization because it is inconsistent with the text of the 2011 policy, which the FTC quotes
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`in its simultaneously filed Complaint in the related case. See Vanover v. Hantman, 77 F. Supp.
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`2d 91, 98 (D.D.C. 1999) (court may consider material outside the pleadings where it is “referred
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`to in the complaint and is central to plaintiff’s claim”). As set out in the FTC’s Complaint, the
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`2011 policy covered only “Apps on Facebook” — i.e., the sort of “canvas apps” described above
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`— rather than freestanding third-party apps or sites such as ESPN.com. See No. 20-3590, ECF
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`No. 3 (Redacted FTC Compl.), ¶ 139 (quoting 2011 policy as stating that “Apps on Facebook
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`may not integrate, link to, promote, distribute, or redirect to any app on any other competing
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`social platform”). The 2011 policy, then, limited what apps hosted and used on Facebook’s own
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`site could do; it did not purport to restrict freestanding apps and sites from linking to or
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`integrating with other social networks.
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`At any rate, armed with its policies, Facebook “began to selectively enforce” them “to cut
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`off API access to companies Facebook worried might one day threaten its monopoly.” Redacted
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`Compl., ¶ 202. Plaintiffs allege that in cutting off access, Facebook intended to, and did,
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`“devastat[e]” the targeted apps by suddenly depriving them of a “critical piece of infrastructure”
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`on which they had relied for growth and engagement — namely, Facebook’s user data and
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`network. Id. The Complaint provides seven discrete examples of competitive or potentially
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`competitive apps that Facebook targeted for API revocation from 2013 to 2015. Each, after
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`promising early growth, faltered shortly after losing its access. Id., ¶¶ 207–12 (Voxer), 213–14
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`(Vine), 215–16 (MessageMe), 217–18 (Path), 219–21 (Circle), 222–24 (Tsū), 225–29 (Phhhoto).
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`Around the same time, Facebook announced yet another new policy, requiring all developers to
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`seek permission before being granted API access, even if they previously had it. Id., ¶ 203.
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`Facebook then denied such requests from “apps it classified as competitors or potential
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`competitors.” Id.
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`According to the States, Facebook’s policies and enforcement decisions helped “ensur[e]
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`that would-be competitors could not gain or maintain a foothold in the Personal Social
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`Networking Services market.” Id., ¶ 230. What is more, Plaintiffs allege, Facebook’s actions
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`deterred other firms (and their venture-capital backers) from even thinking about challenging
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`Facebook Blue. Id. The effect was to “maintain and enhance Facebook’s monopoly power.”
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`Id., ¶ 231.
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`Although the story laid out in the Complaint ends there, the States’ brief in opposition to
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`the present Motion to Dismiss provides an important coda. According to that brief, and a
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`Facebook press release the States append as an exhibit to their Opposition, see ECF No. 121-7,
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`in 2018, Facebook terminated all of its policies regarding competitor API access. See ECF No.
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`122 (States Opp.) at 13. Facebook does not dispute that contention, see ECF No. 123 (Reply
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`States) at 24, and the FTC’s Complaint in the parallel action makes the same allegation. See
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`Redacted FTC Compl., ¶¶ 148–49. The Court accordingly takes judicial notice of the fact that
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`Facebook retracted its API policies in 2018. See Bowden v. United States, 106 F.3d 433, 437
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`(D.C. Cir. 1997) (considering “the pleadings and undisputed documents in the record” while
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`considering motion to dismiss); Webster v. Spencer, No. 17-1472, 2020 WL 2104231, at *5
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`(D.D.C. May 1, 2020) (citing similar cases). That revocation holds legal relevance, as readers
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`with sufficient stamina will discover.
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`D. Procedural History
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`Plaintiffs — 46 States, the District of Columbia, and the Territory of Guam — filed this
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`action on December 9, 2020. See Redacted Compl. at 5 n.1. Their Complaint alleges three
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`counts. First, they claim, Facebook has violated, and is violating, Section 2 of the Sherman
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`Act’s prohibition on monopoly maintenance via the two forms of exclusionary conduct described
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` 15
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`

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`Case 1:20-cv-03589-JEB Document 137 Filed 06/28/21 Page 16 of 67
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`above: acquiring nascent and potential competitors, and anticompetitively conditioning access to
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`its APIs. Id., ¶¶ 256–62. Second, Facebook violated Section 7 of the Clayton Act by acquiring
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`Instagram, thereby “substantially . . . lessen[ing] competition [and] tend[ing] to create a
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`monopoly,” 15 U.S.C. § 18, and it continues to violate that statute by holding and using
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`Instagram assets. Id., ¶¶ 263–67. Third and finally, Facebook similarly violated and continues
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`to violate Section 7 by acquiring and holding WhatsApp. Id., ¶¶ 268–72. Plaintiffs seek
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`equitable relief for these violations, including an injunction prohibiting similar conduct in the
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`future and the divestiture of unlawfully held assets, id., ¶¶ 277(2), (8), pursuant to Section 16 of
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`the Clayton Act. See 15 U.S.C. § 26 (authorizing suits by “[a]ny person . . . for injunctive relief
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`. . . against threatened loss or damage by a violation of the antitrust laws”).
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`As noted, the Federal Trade Commission filed a very similar suit against Facebook on the
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`same day as the State Pl