Case 1:20-cv-03590-JEB Document 73 Filed 06/28/21 Page 1 of 53
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`FEDERAL TRADE COMMISSION,
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` Plaintiff,
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`v.
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` Civil Action No. 20-3590 (JEB)
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`FACEBOOK, INC.,
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`Defendant.
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`MEMORANDUM OPINION
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`At the time of the last great antitrust battle in our courthouse — between the United
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`States and Microsoft — Mark Zuckerberg was still in high school. Only after his arrival at
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`Harvard did he launch “The Facebook” from his dorm room. Nearly twenty years later, both
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`federal and state regulators contend, in two separate actions before this Court, that Facebook is
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`now the one violating the antitrust laws. The company, they allege, has long had a monopoly in
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`the market for what they call “Personal Social Networking Services.” And it has allegedly
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`maintained that monopoly, in violation of Section 2 of the Sherman Act, through two different
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`kinds of actions: first, by acquiring firms that it believed were well positioned to erode its
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`monopoly — most notably, Instagram and WhatsApp; and second, by adopting policies
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`preventing interoperability between Facebook and certain other apps that it saw as threats,
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`thereby impeding their growth into viable competitors. Both suits seek equitable relief from this
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`conduct, including forced “divestiture or reconstruction of businesses” as well as orders not to
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`undertake similar conduct in the future. See ECF No. 3 (Redacted Compl.) at 51–52. (The
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`Case 1:20-cv-03590-JEB Document 73 Filed 06/28/21 Page 2 of 53
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`Court here cites a copy of the FTC’s Complaint that has minor redactions to protect confidential
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`business information, and it mentions certain redacted facts only with the parties’ permission.)
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`Facebook now separately moves to dismiss both the State action and the FTC action.
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`This Opinion resolves its Motion as to the FTC’s Complaint, and the Court analyzes the States’
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`largely parallel claims in its separate Opinion in No. 20-3589. Although the Court does not
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`agree with all of Facebook’s contentions here, it ultimately concurs that the agency’s Complaint
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`is legally insufficient and must therefore be dismissed. The FTC has failed to plead enough facts
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`to plausibly establish a necessary element of all of its Section 2 claims — namely, that Facebook
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`has monopoly power in the market for Personal Social Networking (PSN) Services. The
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`Complaint contains nothing on that score save the naked allegation that the company has had and
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`still has a “dominant share of th[at] market (in excess of 60%).” Redacted Compl., ¶ 64. Such
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`an unsupported assertion might (barely) suffice in a Section 2 case involving a more traditional
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`goods market, in which the Court could reasonably infer that market share was measured by
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`revenue, units sold, or some other typical metric. But this case involves no ordinary or intuitive
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`market. Rather, PSN services are free to use, and the exact metes and bounds of what even
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`constitutes a PSN service — i.e., which features of a company’s mobile app or website are
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`included in that definition and which are excluded — are hardly crystal clear. In this unusual
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`context, the FTC’s inability to offer any indication of the metric(s) or method(s) it used to
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`calculate Facebook’s market share renders its vague “60%-plus” assertion too speculative and
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`conclusory to go forward. Because this defect could conceivably be overcome by re-pleading,
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`however, the Court will dismiss only the Complaint, not the case, and will do so without
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`prejudice to allow Plaintiff to file an amended Complaint. See Ciralsky v. CIA., 355 F.3d 661,
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`666–67 (D.C. Cir. 2004).
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`To guide the parties in the event amendment occurs, this Opinion also explains two
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`further conclusions of law. First, even if the FTC had sufficiently pleaded market power, its
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`challenge to Facebook’s policy of refusing interoperability permissions with competing apps
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`fails to state a claim for injunctive relief. As explained herein (and in the Court’s separate
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`Opinion in the States’ case), there is nothing unlawful about having such a policy in general.
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`While it is possible that Facebook’s implementation of that policy as to certain specific
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`competitor apps may have violated Section 2, such finding would not change the outcome here:
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`all such revocations of access occurred in 2013, seven years before this suit was filed, and the
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`FTC lacks statutory authority to seek an injunction “based on [such] long-past conduct.” FTC v.
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`Shire ViroPharma, Inc., 917 F.3d 147, 156 (3d Cir. 2019). Regardless of whether the FTC can
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`amend its Complaint to plausibly allege market power and advance this litigation, then, the
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`conduct it has alleged regarding Facebook’s interoperability policies cannot form the basis for
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`Section 2 liability. Second, the agency is on firmer ground in scrutinizing the acquisitions of
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`Instagram and WhatsApp, as the Court rejects Facebook’s argument that the FTC lacks authority
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`to seek injunctive relief against those purchases. Whether other issues arise in a subsequent
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`phase of litigation is dependent on how the Government wishes to proceed.
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`Case 1:20-cv-03590-JEB Document 73 Filed 06/28/21 Page 4 of 53
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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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`1.
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`Instagram ........................................................................................................................ 8
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`2. WhatsApp ..................................................................................................................... 10
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`3.
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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 ...................................................................................................................... 16
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`III. Analysis ................................................................................................................................. 17
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`A. Monopoly Power ............................................................................................................... 18
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`1. Market Definition ......................................................................................................... 19
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`a. Legal Framework ...................................................................................................... 19
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`b. Market-Definition Allegations .................................................................................. 21
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`c. Analysis..................................................................................................................... 23
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`2. Market Share ................................................................................................................. 27
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`B. Platform Policies ............................................................................................................... 33
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`1. Refusal to Deal .............................................................................................................. 34
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`a. Legal Framework ...................................................................................................... 34
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`b. Application ................................................................................................................ 39
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`i.
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`Facebook Policies ................................................................................................. 39
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`ii. Specific Refusals ................................................................................................... 41
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`2. Conditional Dealing ...................................................................................................... 46
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`C. Challenging Acquisitions under Section 13(b) ................................................................. 50
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`IV. Conclusion ............................................................................................................................ 53
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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 what came to be known as “social networking” services. See Redacted Compl.,
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`¶ 38. Friendster and Myspace, both launched in 2002, were among the earliest. Id. Although
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`the precise definition of a “Personal Social Networking Service” is disputed (as that is the market
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`in which Facebook has its alleged monopoly), it can be summarized here as one that enables
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`users to virtually connect with others in their network and to digitally share their views and
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`experiences by posting about them in a shared, virtual social space. Id., ¶ 40. For example, users
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`might view and interact with a letter-to-the-editor-style post on politics by a neighbor, pictures
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`from a friend’s recent party, or a birth announcement for a newborn cousin. Id.
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`Perhaps because humans are naturally social, this new way of interacting became hugely
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`popular. Although Myspace and Friendster had an early lead, by 2009 they had been surpassed
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`by a new competitor. Id., ¶¶ 38, 41. Created at Harvard in 2004, “The Facebook,” as it was
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`initially called, was a social-networking service initially limited to college students. Id., ¶ 41.
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`Within a few years, it had expanded to the general public (and dropped “The” from its name).
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`Id. By at least 2011, it was the dominant player in personal social networking. Id., ¶ 62. Today,
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`the FTC alleges, its flagship product, Facebook Blue, has hundreds of millions of users in the
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`United States. Id., ¶ 3. The following details of Facebook’s conduct are drawn from the FTC’s
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`Complaint, as the Court must consider its allegations true at this stage. The allegations are quite
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`similar, though not identical, to those made by the States in the parallel case and recounted in the
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`Court’s companion Opinion.
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`B. Facebook Blue
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`Facebook Blue is what its millions of users think of when they think of “Facebook.”
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`Generally speaking, using Facebook Blue entails interacting with user-created content — i.e.,
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`content created or shared by one’s Facebook “friends,” id., ¶¶ 40, 89 — or creating content
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`oneself by posting. That is not all that users see or do, however. They may also, for instance,
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`encounter “publisher-created content like news articles . . . and advertisements” in their “news
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`feed.” Id., ¶ 54; see also id., ¶¶ 44, 134. Such content can come in text, photo, or video form.
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`Id., ¶ 54. In addition, Facebook users can play games or use other applications built either by
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`Facebook or by third parties. Id., ¶¶ 97, 129. Facebook also offers other services beyond
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`Facebook Blue to its users, such as Facebook Messenger, a free mobile-messaging service. Id.,
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`¶¶ 37, 115.
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`Unlike most businesses, Facebook charges users no fee; instead, it makes money by
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`selling advertising. Id., ¶¶ 43–51. By leveraging “the vast quantity of user data [it] collects,” the
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`company “allows advertisers to target different campaigns and messages to different groups of
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`users.” Id., ¶ 44; see also id., ¶ 4. Under this business model, as the Complaint puts it, Facebook
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`“refrain[s] from charging a monetary price . . . to users, relying instead on monetizing user data
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`and engagement through advertising.” Id., ¶ 42. Put differently, users exchange their time,
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`attention, and personal data, rather than money, for access to Facebook. That approach has been
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`highly profitable: in 2019, for instance, global advertisers paid Facebook nearly $70 billion, and
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`it made profits of more than $18 billion. Id., ¶¶ 4, 44. To be clear, although Facebook’s data-
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`collection and -use practices have been subject to increasing scrutiny, they are not the subject of
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`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. After rising to
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`become the “dominant personal social networking provider in the United States” around 2011,
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`id., ¶ 62, Facebook allegedly made a fateful strategic pivot: rather than competing to provide the
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`best product, it would instead protect its monopoly by leveraging its power to foreclose and
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`forestall the rise of new competitors. Id., ¶¶ 5, 9. In particular, the company’s executives saw a
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`substantial threat to Facebook’s dominance in the advent of mobile devices — first and foremost,
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`smartphones — capable of accessing the internet. Id., ¶ 70. Although Facebook had mobile
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`functionality, it had been built with websites and desktop or laptop computers in mind and thus
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`“offered a relatively poor experience for mobile users” compared to newer competitors. Id.; see
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`also id., ¶¶ 78–79. Zuckerberg and other Facebook executives fretted over the possibility that
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`other apps might create attractive mobile-native features and then leverage those features into
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`exponential user growth, end-running Facebook’s established position. Id., ¶¶ 107–112. Even if
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`such an app was not already providing social-network-like functionality, once it had a big
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`enough base of users, it would still pose a potential threat to Facebook Blue. Id. Facebook
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`executives feared fast-growing mobile-messaging services in particular, nervous that such apps
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`could easily morph into direct competitors by adding social features.
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`In response to these perceived threats, the company allegedly used its monopoly power to
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`eliminate or destroy competitors in order to maintain its market dominance. Id., ¶¶ 5–9. The
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`FTC claims that this exclusionary conduct had “three main elements.” Id., ¶¶ 9, 71. First (and
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`second), Facebook reached deep into its very deep pockets to acquire Instagram and WhatsApp,
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`two promising potential competitors, thereby preventing their emergence as serious rivals. Id.,
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`¶ 71. (Attempts to purchase other competitors such as Snapchat and Twitter were rebuffed. Id.,
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`¶ 73.) Third, it adopted and then enforced policies that blocked rival apps from interconnecting
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`their product with Facebook Blue, thereby both (i) blunting the growth of potential competitors
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`that might have used that interoperability to attract new users, and (ii) deterring other developers
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`from building new apps or features or functionalities that might compete with Facebook, lest
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`they lose access as well. Id., ¶¶ 23–26.
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`1. Instagram
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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., ¶¶ 79–80. Plaintiff alleges that Instagram’s photo-
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`sharing app also qualifies as a PSN service, meaning that it was a direct competitor to Facebook
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`Blue. Id., ¶ 63. From the get-go, Instagram’s user base grew explosively, eventually attracting
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`the attention of Facebook executives who feared that their own photo-sharing features paled in
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`comparison. Id., ¶¶ 81–85. That disparity gave Instagram a chance to reach a large enough scale
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`to be threatening as a new, mobile- and photo-first social network — whether the firm got there
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`on its own or if, as worried Facebook, it were purchased by a large company like Google or
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`Apple. Id., ¶ 86. After about eighteen months of watching Instagram’s rise, Zuckerberg and his
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`team eventually shifted from trying (and failing) to compete to instead trying to buy. Aiming to
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`both neutralize Instagram as a competitor and “integrate” the “mechanics” of its popular photo-
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`sharing features with Facebook Blue in order to forestall the growth of future Instagrams, id.,
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`¶ 91, Zuckerberg offered to purchase the company for $1 billion in April 2012. Id., ¶ 95.
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`Instagram’s founders agreed. Id.
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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 the FTC conveniently omits any mention of this review in its
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`Complaint, the Court may take judicial notice of that public 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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`With Instagram safely in the fold, Facebook scaled back and eventually shut down its
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`own mobile photo-sharing app. See Redacted Compl., ¶ 98. Internal emails cited by the
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`Complaint reveal that it also fretted less about competition from other similar apps, since its
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`ownership of Instagram meant it now “effectively dominate[d] photo sharing.” Id., ¶ 99. As
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`time went on, Facebook also limited Facebook Blue’s promotion of the technically separate
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`Instagram app and website, allegedly to avoid Instagram’s “cannibalizing” user engagement on
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`its flagship service. Id., ¶¶ 102–04. All this post-acquisition conduct, the FTC claims, confirms
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`that Facebook’s executives saw, and continue to see, Instagram as a significant competitive
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`threat in the social-networking arena. Id., ¶ 102.
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`2. WhatsApp
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`The other high-profile acquisition Plaintiff focuses on here involves not a competitor in
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`the PSN market, like Instagram, but a company that might quickly become one. As noted above,
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`Facebook’s executives saw mobile-native apps in general as a threat. They were particularly
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`concerned with internet-based, so-called “over-the-top mobile messaging services” such as
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`WhatsApp. Id., ¶ 107. Since 2011, OTT messaging services have grown astronomically in use
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`while SMS or MMS messaging (the kind of classic texting that relies on cellular networks rather
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`than internet) has stagnated. Id. Even though mobile messaging services did not directly
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`compete with Facebook Blue (as they are not PSN services), Facebook feared that such apps
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`might well become competitors in the future; given the ubiquity of text messaging in modern
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`life, a widely adopted messaging app could leverage its network effects to transition into a
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`“mobile-first social network” by adding functions such as “gaming platforms, profiles, and news
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`feeds.” Id., ¶ 111; see id., ¶¶ 108–112.
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`Facebook executives saw WhatsApp as the most potent threat among mobile-messaging
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`services. Id., ¶ 113. Launched in 2009, it had approximately 450 million active users worldwide
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`five years later and was growing exponentially thanks to its superior product. Id., ¶¶ 113–18.
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`Zuckerberg and his team hoped that their Facebook Messenger app, released in 2011, would
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`compete. Id., ¶¶ 115–16. But as WhatsApp continued to thrive and expand, Facebook instead
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`resolved to try to buy it. Id., ¶ 120. After being initially rebuffed in late 2012, id., ¶ 121, that
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`tactic found success in February 2014, when the two companies agreed on a purchase price of
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`$19 billion. Id. The transaction was also subject to Hart-Scott-Rodino Act pre-merger review,
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`see 18 U.S.C. § 18b, but the FTC, once again, did not block it.
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`Since acquiring WhatsApp, the agency alleges, Facebook has “kept [it] cabined to
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`providing mobile messaging services rather than allowing” it to grow into a standalone PSN
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`service. See Redacted Compl., ¶ 126. As with Instagram, Facebook has also limited its
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`promotion of WhatsApp on its other services in the United States. Id. It follows, Plaintiff
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`further claims, that “Facebook’s monopolization” via both its WhatsApp and Instagram
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`acquisitions “is ongoing,” as it both “continues to hold and operate [the two companies], which
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`neutralizes their direct competitive threats to Facebook,” and “continues to keep them positioned
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`to provide a protective ‘moat’ around its [PSN] monopoly.” Id., ¶ 76.
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`3. Interoperability Permissions
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`a. Facebook Platform
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`Not long after it expanded to the general public, Facebook released “Facebook Platform,”
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`a set of tools that allowed software developers to create interoperability between their products
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`and Facebook Blue. Id., ¶ 129. As initially launched, Platform “encouraged software developers
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`to build an entire ecosystem of apps and tools” that would be displayed and used within the
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`Facebook website itself. Id. Such apps “rang[ed] games and page design tools to video-sharing
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`tools and e-marketing apps.” Id. (The States’ Complaint in the parallel case refers to these apps
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`as “canvas” apps. See No. 20-3589, ECF No. 4 (State Redacted Compl.), ¶ 190.) Such apps
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`would make money by allowing users to purchase virtual goods or items within the app on a
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`“freemium” model or via ad sales.
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`Three years later, in 2010, Facebook added new functionalities to Platform that expanded
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`its reach off the Facebook site itself. These tools — called application programming interfaces
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`or APIs — created mechanisms for sharing data between Facebook and other, freestanding third-
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`party apps. See Redacted Compl., ¶ 130. One important API that Facebook offered to
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`developers was the “Find Friends” API, id., which enabled third-party apps to allow Facebook
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`account holders to find and connect with Facebook friends within their separate apps, or to invite
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`Facebook friends to join that app. Id. For instance, when first starting to use an independent
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`chess app — i.e., an app used separately as opposed to on the Facebook site itself — a user with
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`a Facebook account could nonetheless search within the app for other Facebook friends already
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`using it, or invite them to join via Facebook, all without leaving the app. Another API allowed
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`Facebook users to sign into third-party websites or apps using their Facebook log-in credentials.
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`Id., ¶¶ 144, 154.
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`Facebook went even further in that direction later in the year when it launched its Open
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`Graph API. Id., ¶ 131. Open Graph allowed third-party apps and websites to essentially
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`integrate pieces of Facebook within their own service; for instance, apps could install the famous
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`“Like” button, which, if clicked, would share a user’s “like” on the user’s Facebook profile. Id.
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`Users could do this without even navigating away from the third-party service. Id., ¶¶ 131, 134.
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`A user reading an article on WashingtonPost.com, for instance, could now like an article directly
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`on-site and further choose to post a link of the article to the user’s Facebook profile. This sort of
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`integration was, unsurprisingly, massively popular among app developers. “By July 2012, Open
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`Graph was being used to share nearly one billion pieces of social data each day to Facebook
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`Blue, giving Facebook substantially greater and richer information about its users and their
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`online activities.” Id., ¶ 132.
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`According to Plaintiff, Facebook benefited significantly from its Platform program and
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`open APIs. The company garnered goodwill and continued to increase its growth and user
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`engagement. Id., ¶¶ 133–34. It also obtained access to a massive new trove of off-site user data.
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`Id., ¶ 134. Third-party app developers likewise gained, improving the quality of users’
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`experience by integrating social functionality and benefiting from Facebook’s sizeable network
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`of highly engaged users. Id., ¶¶ 132–33. Users, too, presumably enjoyed the increased
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`efficiency and convenience.
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`b. Conditioning Access
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`Nonetheless, Facebook eventually began to use the power of its Platform tools over the
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`growth trajectory of nascent apps to “deter and suppress competitive threats to its personal social
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`networking monopoly.” Id., ¶ 136. Specifically, the FTC alleges, the company adopted policies
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`under which its APIs would be “available to developers only on the condition that their apps” did
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`not compete with Facebook Blue (or Facebook Messenger). Id. The company then enforced
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`those policies against “apps that violated the[] conditions by cutting off their use of
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`commercially significant APIs.” Id.
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`Facebook announced the first iteration of these policies in July 2011, alerting developers
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`that going forward, “Apps on Facebook [could] not integrate, link to, promote, distribute, or
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`redirect to any app on any other competing social platform.” Id., ¶ 139. This policy, by its
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`terms, applied only to “[a]pps on Facebook” — i.e, the “canvas” apps described above that could
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`only be accessed and used on the Facebook website itself. Id. Put differently, this initial policy
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`did not affect the sort of freestanding, independent apps discussed above, such as our chess app
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`or the Washington Post app. It was not until later that Facebook “imposed several other policies
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`restricting” freestanding apps’ “use of Facebook Platform, including [the] APIs” just discussed.
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`Id., ¶ 141. The first of those additional policies, announced in 2012, prohibited developers from
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`“us[ing] Facebook Platform to export [Facebook] user data into a competing social network
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`without our permission.” Id., ¶ 142. The next year, Facebook went further by instructing
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`developers that their apps could “not use Facebook Platform to promote, or to export user data
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`to, a product or service that replicates a core Facebook product or service without our
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`permission.” Id., ¶ 143.
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`Armed with these policies, Facebook then enforced them by cutting off API access to
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`certain apps. As Plaintiff describes it, those cutoffs were “generally directed against apps in
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`three groups.” Id., ¶ 152. First, Facebook terminated the API access of promising apps that were
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`directly competing with Facebook Blue by providing Personal Social Networking Services, such
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`as Path, a feed-based sharing app that limited the number of friends a user could have to
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`encourage more intimate sharing. Id., ¶ 153. Second, Facebook targeted “promising apps with
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`some social functionality” but which were not yet full-fledged competitors to Facebook Blue.
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`Id., ¶ 154. As examples, the Complaint provides Vine, a video-sharing app owned by Twitter to
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`which Facebook shut down API access in January 2013, and Circle, a “local social network” that
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`had its permissions revoked in December of that year. Id., ¶¶ 154–55. Last, “Facebook blocked
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`mobile messaging apps from using commercially significant APIs”; at one point, in August
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`2013, it “undertook an enforcement strike against a number” of such apps “simultaneously.” Id.,
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`¶ 156.
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`Each of these revocations of access, the FTC alleges, significantly “hindered the ability
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`of [the targeted] businesses to grow and threaten Facebook’s personal social networking
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`monopoly.” Id., ¶ 157. During the period in which Circle had Facebook API access, for
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`example, it was growing at a rate of 600,000-800,000 users per day; after losing its Facebook
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`interconnections (particularly the Find Friends tool), however, its “daily new users dropped . . .
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`to nearly zero.” Id., ¶ 154. Facebook’s actions also allegedly “alerted other apps that they would
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`lose access . . . if they, too, posed a threat to Facebook’s . . . monopoly,” thereby deterring other
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`apps from adding features or functionality that would attract the company’s ire. Id., ¶ 158.
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`Case 1:20-cv-03590-JEB Document 73 Filed 06/28/21 Page 15 of 53
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`There is an important coda to this story, however: Facebook “removed its ‘core
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`functionality’ restrictions” in December 2018. Id., ¶ 148 (emphasis added). Although the
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`company has not reinstated the policies (or, according to the Complaint, revoked any apps’ API
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`access) since that time, the FTC alleges that Facebook “is likely to reinstitute such policies if
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`[public] scrutiny passes.” Id., ¶¶ 149, 172.
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`D. Procedural History
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`The FTC filed this action on December 9, 2020, asserting that the above conduct amounts
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`to one count of monopoly maintenance under Section 2 of the Sherman Act. Id., ¶¶ 169–73.
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`Unlike the States, the agency does not also allege a violation of Section 7 of the Clayton Act,
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`which prohibits acquisitions that will substantially decrease competition. Plaintiff brings this
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`suit under Section 13(b) of the FTC Act, which authorizes it to seek an injunction against an
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`entity that “is violating” or “is about to violate” the antitrust laws, including Section 2. See 15
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`U.S.C. § 53(b). It hopes to procure an injunction aimed at preventing such conduct in the future
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`as well as an order mandating “divestiture of assets, divestiture or reconstruction of businesses
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`(including, but not limited to, Instagram and/or WhatsApp), and such other relief sufficient to
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`restore the competition that would exist absent the conduct alleged in the Complaint.” Redacted
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`Compl. at 51.
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`This case was initially assigned to Judge Christopher R. Cooper of this district. As noted
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`above, however, a number of State Plaintiffs filed a very similar suit against Facebook just
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`before this action was filed. That case, No. 20-3589, was assigned to this Court. Pursuant to
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`Local Rule 40.5(c)(2), which governs related cases, Judge Cooper was required to reassign this
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`action to this Court because it presides over the earlier-filed State case. See No. 20-3590,
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`Minute Order of Jan. 12, 2021.
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`Case 1:20-cv-03590-JEB Document 73 Filed 06/28/21 Page 16 of 53
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`Facebook has now moved to dismiss both actions. See ECF No. 56 (MTD FTC); No. 20-
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`3589, ECF No. 114 (MTD States). While the cases could be consolidated, the Court believes
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`that clarity will be enhanced by resolving the two Motions to Dismiss in separate,
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`contemporaneously issued Opinions. As explained in its separate Opinion, it will grant the
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`Motion to Dismiss the States’ entire case. See Mem. Op., No. 20-3589. By contrast, the Court
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`here will dismiss only the Complaint, not the case, leaving the agency the chance to replead if it
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`believes it can successfully remedy the infirmities described below.
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`II.
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`Legal Standard
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`Facebook moves to dismiss this action under Federal Rule of Civil Procedure 12(b)(6) for
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`failure to state a claim upon which relief can be grant