holding that Clayton Act causes of action against Facebook “accrued in 2012 when Facebook acquired Instagram and in 2014 when Facebook acquired WhatsApp”
How later courts described this case
- holding that Clayton Act causes of action against Facebook “accrued in 2012 when Facebook acquired Instagram and in 2014 when Facebook acquired WhatsApp”
- taking judicial notice of FTC complaint, which comprises of “facts on the public record” (citation omitted)
- finding “no merit” to the argument that VMTS is not an SDVOSB because of its relationship with Stone
- rejecting Alpha’s argument that “VMTS does not qualify as an eligible SDVOSB due to the concern’s reliance and association with Stone Network, a non-SDVOSB entity”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2022 Decided April 27, 2023
No. 21-7078
STATE OF NEW YORK, ET AL.,
APPELLANTS
v.
META PLATFORMS, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03589)
Barbara D. Underwood, Solicitor General, Office of the
Attorney General for the State of New York, argued the cause
for appellants. With her on the briefs were Letitia James,
Attorney General, Steven C. Wu, Deputy Solicitor General,
Anisha S. Dasgupta, Deputy Solicitor General, Philip J. Levitz,
Assistant Solicitor General of Counsel, Karl A. Racine, Attorney
General, Office of the Attorney General for the District of
Columbia, Caroline S. Van Zile, Solicitor General, Megan D.
Browder, Assistant Attorney General, Rob Bonta, Attorney
General, Office of the Attorney General for the State of
California, Paula L. Blizzard, Supervising Deputy Attorney
General, Mina Noroozkhani, Deputy Attorney General, Philip J.
Weiser, Attorney General, Office of the Attorney General for the
2
State of Colorado, Jeffrey H. Blattner, Special Assistant
Attorney General, Diane R. Hazel, Attorney, Carla J. Baumel,
Assistant Attorney General, Ashley Moody, Attorney General,
Office of the Attorney General for the State of Florida, Nicholas
D. Niemiec, Attorney, Thomas J. Miller, Attorney General,
Office of the Attorney General for the State of Iowa, Max M.
Miller, Assistant Attorney General, Douglas J. Peterson,
Attorney General, Office of the Attorney General for the State
of Nebraska, Shereece Dendy-Sanders, Assistant Attorney
General, Joseph M. Conrad, Assistant Attorney General, Joshua
H. Stern, Attorney General, Office of the Attorney General for
the State of North Carolina, Sarah G. Boyce, Deputy Solicitor
General, Dave Yost, Attorney General, Office of the Attorney
General for the State of Ohio, Jennifer L. Pratt, Chief, Antitrust
Section, Herbert H. Slatery, III, Attorney General and Reporter,
Office of the Attorney General for the State of Tennessee, at the
time the brief was filed, J. David McDowell, Deputy Attorney
General, Treg R. Taylor, Attorney General, Office of the
Attorney General for the State of Alaska, Mary Hunter
Gramling, Assistant Attorney General, Mark Brnovich, Attorney
General, Office of the Attorney General for the State of Arizona,
Drew Ensign, Section Chief Counsel, Leslie Rutledge, Attorney
General, Office of the Attorney General for the State of
Arkansas, Johnathan R. Carter, Assistant Attorney General,
William Tong, Attorney General, Office of the Attorney General
for the State of Connecticut, Clare E. Kindall, Solicitor General,
Kathleen Jennings, Attorney General, Office of the Attorney
General for the State of Delaware, Michael A. Undorf, Deputy
Attorney General, Leevin Taitano Camacho, Attorney General,
Office of the Attorney General for the Territory of Guam, Holly
T. Shikada, Attorney General, Office of the Attorney General for
the State of Hawaii, Rodney I. Kimura, Deputy Attorney
General, Lawrence G. Wasden, Attorney General, Office of the
Attorney General for the State of Idaho, David B. Young, Deputy
Attorney General, Kwame Raoul, Attorney General, Office of
3
the Attorney General for the State of Illinois, Alex Hemmer,
Deputy Solicitor General, Todd Rokita, Attorney General, Office
of the Attorney General for the State of Indiana, Matthew
Michaloski, Deputy Attorney General, Scott Barnhart, Chief
Counsel and Director of Consumer Protection, Derek Schmidt,
Attorney General, Office of the Attorney General for the State
of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General,
Daniel Cameron, Attorney General, Office of the Attorney
General for the Commonwealth of Kentucky, Jonathan Farmer,
Deputy Executive Director, Jeff Landry, Attorney General,
Office of the Attorney General for the State of Louisiana, Aaron
M. Frey, Attorney General, Office of the Attorney General for
the State of Maine, Christina M. Moylan, Assistant Attorney
General, Brian E. Frosh, Attorney General, Office of the
Attorney General for the State of Marlyand, Adam D. Snyder,
Deputy Chief, Maura Healey, Attorney General, Office of the
Attorney General for the Commonwealth of Massachusetts,
Michael B. MacKenzie, Deputy Division Chief, Dana Nessel,
Attorney General, Office of the Attorney General for the People
of the State of Michigan, Scott A. Mertens, Assistant Attorney
General, Keith Ellison, Attorney General, Office of the Attorney
General for the State of Minnesota, Lynn Fitch, Attorney
General, Office of the Attorney General for the State of
Mississippi, Elisabeth Hart Pepper Martin, Special Assistant
Attorney General, Eric Schmitt, Attorney General, Office of the
Attorney General for the State of Missouri, Stephen M.
Hoeplinger, Assistant Attorney General, Austin Knudsen,
Attorney General, Office of the Attorney General for the State
of Montana, Mark W. Mattioli, Chief Deputy, Aaron D. Ford,
Attorney General, Office of the Attorney General for the State
of Nevada, Marie W. L. Martin, Assistant Attorney General,
John M. Formella, Attorney General, Office of the Attorney
General for the State of New Hampshire, Andrew Bruck,
Attorney General, Office of the Attorney General for the State
of New Jersey, at the time the brief was filed, Isabella R. Pitt,
4
Deputy Attorney General, Hector H. Balderas, Attorney
General, Office of the Attorney General for the State of New
Mexico, Brian E. McMath, Assistant Attorney General, Wayne
Stenehjem, Attorney General, Office of the Attorney General for
the State of North Dakota, at the time the brief was filed, Parrell
D. Grossman, Assistant Attorney General, John O’Connor,
Attorney General, Office of the Attorney General for the State
of Oklahoma, Caleb J. Smith, Assistant Attorney General, Ellen
F. Rosenblum, Attorney General, Office of the Attorney General
for the State of Oregon, Cheryl F. Hiemstra, Assistant Attorney
General, Josh Shapiro, Attorney General, Office of the Attorney
General for the Commonwealth of Pennsylvania, Abigail U.
Wood, Deputy Attorney General, Tracy W. Wertz, Chief Deputy
Attorney General, Peter F. Neronha, Attorney General, Office
of the Attorney General for the State of Rhode Island, Michael
W. Field, Assistant Attorney General, Ken Paxton, Attorney
General, Office of the Attorney General for the State of Texas,
William J. Shieber, Assistant Attorney General, Sean D. Reyes,
Attorney General, Office of the Attorney General for the State
of Utah, Melissa A. Holyoak, Solicitor General, Thomas J.
Donovan, Jr., Attorney General, Office of the Attorney General
for the State of Vermont, at the time the brief was filed,
Benjamin D. Battles, Solicitor General, Mark R. Herring,
Attorney General, Office of the Attorney General for the
Commonwealth of Virginia, at the time the brief was filed,
Sarah Oxenham Allen, Assistant Attorney General, Tyler T.
Henry, Assistant Attorney General, Robert W. Ferguson,
Attorney General, Office of the Attorney General for the State
of Washington, Amy N.L. Hanson, Assistant Attorney General,
Patrick Morrisey, Attorney General, Office of the Attorney
General for the State of West Virginia, Tanya L. Godfrey,
Assistant Attorney General, Joshua L. Kaul, Attorney General,
Office of the Attorney General for the State of Wisconsin,
Gwendolyn J. Cooley, Assistant Attorney General, Bridget Hill,
Attorney General, Office of the Attorney General for the State
5
of Wyoming, Amy A. Pauli, Assistant Attorney General, and
Melissa Westby, Executive Management. Brian V. Church,
Deputy Attorney General, Office of the Attorney General for the
State of Idaho, Margaret I. Olson, Assistant Attorney General,
Office of the Attorney General for the State of North Dakota,
Amber C. Wessels-Yen, Assistant Attorney General, Office of
the Attorney General for the State of New York, Bryan C. Yee,
Deputy Attorney General, Office of the Attorney General for the
State of Hawaii, Michael T. Kahler, Senior Assistant Attorney
General, Office of the Attorney General for the State of
Wyoming, Bryce A. Pashler, Assistant Attorney General, Office
of the Attorney General for the State of Iowa, Rachel E. Smith,
Deputy Solicitor General, Office of the Attorney General for the
State of Vermont, Steven M. Sullivan, Assistant Attorney
General, Office of the Attorney General for the State of
Maryland, and Judith Vale, Assistant Deputy Solicitor General,
Office of the Attorney General for the State of New York,
entered appearances.
Sharon Robertson and Jessica Weiner were on the brief for
amici curiae Economists in support of appellants.
David Golden was on the brief for amici curiae Former
State Antitrust Enforcement Officials and Antitrust Law
Professors in support of appellants.
Daniel E. Haar, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae the United States in support
of appellants. With him on the brief were Nickolai G. Levin,
Adam D. Chandler, and Cecilia Y. Cheng, Attorneys.
Randy M. Stutz was on the brief for amicus curiae the
American Antitrust Institute in support of appellants.
David H. Weinstein was on the brief for amicus curiae The
6
Committee to Support the Antitrust Laws in support of
appellants.
Aaron M. Panner argued the cause for appellee. With him
on the brief were Mark C. Hansen, Julius P. Taranto, and Alex
A. Parkinson. Geoffrey M. Klineberg entered an appearance.
George L. Paul, Andrew Black, and Jaclyn Phillips were on
the brief for amicus curiae International Center for Law and
Economics and Scholars of Law and Economics in support of
appellee.
Deanne E. Maynard and Adam L. Sorensen were on the
brief for amicus curiae Former Federal Antitrust Enforcer in
support of appellee.
Noel J. Francisco, James M. Burnham, Brinton Lucas,
Stephanie A. Joyce, and Craig E. Stewart were on the brief for
amici curiae The Chamber of Commerce of the United States of
America, et al. in support of appellee.
Nicole A. Saharsky and Minh Nguyen-Dang were on the
brief for amici curiae J. Gregory Sidak and David J. Teece in
support of appellee.
Richard P. Bress and Charles S. Dameron were on the brief
for amici curiae Former Federal Antitrust Enforcers in support
of appellee.
Cory L. Andrews, John M. Masslon II, and Zachary D.
Tripp were on the brief for amici curiae Washington Legal
Foundation and Information Technology & Innovation
Foundation in support of appellee.
Before: HENDERSON and WILKINS, Circuit Judges, and
7
RANDOLPH, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: Meta Platforms, Inc.
owns and operates the social media network Facebook.1 Forty-
six states, the District of Columbia, and the Territory of Guam
joined in a civil complaint charging Facebook with violating the
antitrust laws. The States, as we shall call the plaintiffs, alleged
that Facebook committed these violations as a result of its
acquisitions of several actual or potential competitors and its
restrictions on developers of applications that linked to
Facebook. The States sought equitable relief. The district court,
Boasberg, J., dismissed their Complaint and issued a
comprehensive and persuasive opinion. New York v. Facebook,
Inc. (Facebook I), 549 F. Supp. 3d 6 (D.D.C. 2021).
I.
The States’ Complaint consists of 277 numbered paragraphs
and three counts. We assume that the allegations of fact relevant
to the States’ claims are true.
The States alleged that many millions of Americans and
others throughout the world were on Facebook sharing thoughts,
opinions, videos and photographs with others on the network.
Complaint ¶ 1, 66. Facebook users not only responded to other
users, but also created their own messages and images.
Facebook users also viewed postings such as newspaper articles
1
In October 2021, the parent company of Facebook changed its
name from Facebook, Inc., to Meta Platforms, Inc. Because the events
at issue in this case took place before the name change, we refer to the
company as “Facebook.”
8
and advertisements. Facebook connected to other websites and
applications (or “apps”), both inside and outside of Facebook
itself. Complaint ¶ 191. Within Facebook, users gained access
to applications that allowed them to play a game or take a
personality quiz – what Facebook called “canvas apps.”
Complaint ¶ 190. Outside of Facebook, a variety of external
websites connected to Facebook in one way or another.
Complaint ¶¶ 81-82, 191. Some Facebook users maintained a
list of “friends” – people the user designated as those they know,
or want to know. Complaint ¶¶ 44, 58, 77.
At the time of the States’ Complaint, Facebook users were
not charged anything to join. And after they joined they were not
charged for software design or server space or anything else.
Complaint ¶¶ 2–3. Facebook derived its revenue from
advertisers who paid to have their advertisements displayed on
users’ interfaces (or “newsfeeds,” as they were sometimes
called). Complaint ¶¶ 3, 250. Advertisers were attracted to
Facebook because it offered “access to a large, highly engaged
user base, and finely targeted advertising audiences derived
from the vast quantity of user data the company has amassed.”
Complaint ¶ 48.
Between 2012 and 2020, while the number of Facebook
users significantly increased, Facebook acquired “dozens of
companies.” Complaint ¶ 105. The States’ Complaint focused
on two of those acquisitions: Instagram, acquired in 2012, and
WhatsApp, acquired in 2014. Complaint ¶¶ 119, 166, 263–72.
Instagram began in 2010 as a smartphone app that allowed
users to edit and share photographs with each other. Complaint
¶¶ 107–09. Instagram grew rapidly in its first year and a half of
operation, and attracted Facebook’s attention. Complaint
¶¶ 110–13. At the time, Facebook was developing its own
photo-sharing feature – “Facebook Camera.” Complaint ¶ 113.
9
Facebook viewed Instagram as a potential rival in photo-sharing.
Complaint ¶¶ 111–17. In mid-2012, Facebook purchased
Instagram. Complaint ¶¶ 118–19. After the acquisition,
Facebook matched Instagram and Facebook accounts “so that
Facebook could use information that users had shared with
[Facebook] to serve ads to those users on Instagram.”
Complaint ¶ 127. Facebook also discontinued development of
Facebook Camera. Complaint ¶ 124.
In 2014 Facebook acquired WhatsApp, a messaging app
that let users communicate through text messages, voice calls,
and video calls. By that year, WhatsApp had more than 400
million active users worldwide and was particularly popular in
Europe. Complaint ¶ 155. As WhatsApp’s popularity grew,
Facebook’s leadership became concerned that WhatsApp could
add social-networking features and leverage its success in the
messaging space to compete with Facebook. Complaint
¶¶ 158–64. Eventually, in mid-2014 Facebook acquired
WhatsApp for about $19 billion. Complaint ¶¶ 165–67.
Thereafter, Facebook utilized WhatsApp user data to “promote
its core platform” – by, for instance, linking users’ accounts on
WhatsApp with their accounts on Facebook and using the linked
data to help attract additional users to Facebook. Complaint
¶ 176.
Although the States’ Complaint focuses on Instagram and
WhatsApp, it briefly mentions that Facebook acquired other
companies between 2012 and 2016 – Onavo, Glancee, and
EyeGroove – and either leveraged the technology of those
companies to gain an advantage in the social networking market,
Complaint ¶¶ 143–48, or shelved the companies’ technology,
Complaint ¶ 184.
At about the same time as these acquisitions, Facebook also
transformed how it interacted with users and application
10
developers. Facebook allowed users to interact both with
applications on Facebook itself – so-called “canvas” apps – and
outside applications and websites. Complaint ¶¶ 190–91. For
instance, a Facebook user could take a personality test located
directly on Facebook’s website and could use a tool embedded
in an article on The Wall Street Journal’s outside website to post
a link to that article on Facebook. Complaint ¶¶ 190–93.
Facebook enabled these connections between Facebook and
other apps and websites through a “suite” of software tools
collectively called “Facebook Platform.” Complaint ¶ 188.
Facebook Platform enabled users of canvas apps and outside
apps to “easily and seamlessly interact with all their Facebook
friends” at once through those other apps. Complaint ¶ 190.
Facebook Platform relied on what are called “application
programming interfaces,” or “APIs” for short, software that
allows two different applications – for instance, Facebook and
an outside application – to communicate with one another and
share information. One key API, “Find Friends,” allowed users
who had a profile on Facebook and on another app to find all
users of that app with whom they were also “friends” on
Facebook. Complaint ¶¶ 190, 214.
Facebook Platform brought significant benefits to both
Facebook and outside app developers. For Facebook, Platform-
enabled canvas apps attracted new users and kept old users on
Facebook for longer lengths of time. Complaint ¶ 195. Also,
the links of outside apps and websites to Facebook funneled
users back to Facebook from those outside sites. Complaint
¶ 191. For app developers, connections to Facebook “boost[ed]
their apps’ growth” and “dr[o]ve traffic and engagement.”
Complaint ¶¶ 194, 197. Developers of canvas apps turned their
growing user bases into revenue, either by selling advertising
space within the app or by selling in-app goods to users.
Developers of outside apps also capitalized on their greater
11
visibility when connected to Facebook. Complaint ¶¶ 196–97.
Over time, Facebook made changes to Facebook Platform and
its published statements of its Facebook Platform Policies.
Originally, Facebook “welcome[d] developers with
competing applications” to use Facebook Platform and integrate
with Facebook. Complaint ¶ 189. But in 2011, Facebook
“adopted a policy aimed at forbidding . . . any apps that linked
or integrated with competing social platforms[] from accessing”
Facebook Platform. Complaint ¶ 199. This policy – the
competitor integration policy – allegedly “discouraged
developers from creating apps that bridged” different social
media networks. Id. These cross-network apps “would have
reduced switching costs for users.” Id. In economic terms,
“switching costs” refers not to financial disincentives, but to the
burdens of time spent and the annoyance a user would
experience in switching social media networks: re-building a list
of friends; re-posting and saving photographs; recapturing the
posts of friends and saving them again, and so forth. Complaint
¶ 43.
Two years later, in 2013, Facebook amended its Platform
Policies to forbid “applications that” – here the Complaint
quotes – “replicate[ Facebook’s] core functionality.” Complaint
¶ 201. (We discuss later the full text of this policy amendment,
which the Complaint omits.) Without access to Facebook
Platform, the users of competing apps – so the States charged –
“would no longer be able to bring their friend list to the new
app” using Find Friends. Complaint ¶ 202. And these
competing apps would have a “sudden loss of functionality”:
when their Platform-enabled features ceased to work properly,
apps were left “broken or buggy.” Id.
Facebook removed this core functionality policy in
December 2018, and removed the competitor integration policy
12
from its Platform Policies by at least that year.2 See Fed. Trade
Comm’n v. Facebook, Inc. (Facebook II), 560 F. Supp. 3d 1, 11
(D.D.C. 2021).
The States filed their Complaint on December 9, 2020, and
the Federal Trade Commission (FTC) filed a complaint on the
same day.
Two of the three counts in the States’ Complaint alleged
that Facebook’s acquisition of Instagram and WhatsApp
violated § 7 of the Clayton Act which prohibits mergers that
may “substantially . . . lessen competition, or . . . tend to create
a monopoly.” 15 U.S.C. § 18. Complaint ¶¶ 263–72. The other
count alleged that these acquisitions, as well as Facebook’s
Platform policy changes, formed a “buy-or-bury” strategy that
harmed competition and violated the prohibition of § 2 of the
Sherman Act against the unlawful creation or maintenance of a
monopoly. See Complaint ¶¶ 256–62; 15 U.S.C. § 2. As a
remedy, the States invoked § 16 of the Clayton Act, which
authorizes “person[s]” to sue for “injunctive relief . . . against
threatened loss or damage by a violation of the antitrust laws.”
15 U.S.C. § 26. The FTC’s complaint contained only one count.
FTC Complaint ¶¶ 169–73. This alleged that Facebook’s
acquisitions and policies together constituted unlawful
maintenance of monopoly under § 2 of the Sherman Act. Id.
The district court granted Facebook’s motions to dismiss
the States’ lawsuit and the FTC’s complaint, though the court
gave the FTC leave to amend its complaint. See Facebook I,
549 F. Supp. 3d at 49; Facebook II, 560 F. Supp. 3d at 32. The
2
The States’ Complaint did not mention Facebook’s termination
of its policies but the district court properly took judicial notice of this
development based on the States’ briefing and attached documents.
See Facebook I, 549 F. Supp. 3d at 20.
13
FTC then filed an amended complaint. The district court did not
dismiss the FTC’s acquisition-related allegations in the amended
complaint (although it refused to allow the FTC to conduct
discovery on, or otherwise proceed with, its policy-related
allegations). See Fed. Trade Comm’n v. Facebook, 581 F. Supp.
3d 34, 60–61, 65 (2022).
II.
A preliminary observation is in order.
The States’ lawsuit is not only odd, but old.
“Odd” because the States’ suit concerns an industry that,
even on the States’ allegations, has had rapid growth and
innovation with no end in sight.
“Old” for the reasons we now explain.
The States’ Complaint, filed in December 2020, charged
Facebook with having violated the federal antitrust laws in
acquiring and then absorbing Instagram in 2012 and WhatsApp
in 2014. The States sought an injunction requiring Facebook to
dismantle these acquisitions and to divest itself of both
companies.
In response, Facebook raised “laches.” “The defense of
laches ‘requires proof of (1) lack of diligence by the party
against whom the defense is asserted, and (2) prejudice to the
party asserting the defense.’” Kansas v. Colorado, 514 U.S. 673,
687 (1995) (quoting Costello v. United States, 365 U.S. 265, 282
(1961)); see also Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 121–22 (2002).
The original Sherman Act permitted only the federal
14
government to bring actions for injunctions. See Paine Lumber
Co. v. Neal, 244 U.S. 459, 471 (1917). An “amendment was
necessary to permit suit for an injunction” by other plaintiffs.
Georgia v. Evans, 316 U.S. 159, 162 (1942). The “amendment”
– § 16 of the Clayton Act – made injunctive relief available in
suits by private parties. See 15 U.S.C. § 26.
Section 16 of the Clayton Act, passed in 1914, specified no
time limit for the newly authorized private antitrust actions
seeking injunctions. The omission is understandable. In that
era, statutes setting time limits on when suits could be brought
usually applied only to actions at law (for damages and
penalties) and to criminal prosecutions.3 For actions in equity,
such as suits for injunctions, the judicially-devised doctrine of
laches, developed in the 18th century English Chancery Court
and imported into our laws, took care of long-delayed claims for
relief. See 1 Dan Dobbs, Law of Remedies § 2.4(4), at 104 (2d
ed. 1993); Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.
663, 678–79 (2014).
The distinctions just mentioned, between actions at law and
suits in equity, long ago disappeared in most of federal law. See
Fed. R. Civ. P. 2. Yet the equitable doctrine of laches still
applies in some federal cases. The doctrine continues to apply
3
For example, Chief Justice Marshall wrote: “In a country where
not even treason can be prosecuted, after a lapse of three years, it
could scarcely be supposed, that an individual would remain for ever
liable to a pecuniary forfeiture.” Adams v. Woods, 6 U.S. (2 Cranch)
336, 341 (1805). Justice Story, sitting as a circuit justice in a civil
penalty case, made the same point: “it would be utterly repugnant to
the genius of our laws, to allow such prosecutions a perpetuity of
existence.” United States v. Mayo, 26 F. Cas. 1230, 1231 (C.C.D.
Mass. 1813); see also H.P. Lambert Co. v. Secretary of the Treasury,
354 F.2d 819, 822 (1st Cir. 1965); United States v. Maillard, 26 F.
Cas. 1140, 1142–43 (S.D.N.Y. 1871).
15
because federal courts have interpreted federal statutes, at least
older statutes containing equitable causes of action such as § 16
of the Clayton Act, as having incorporated – sub silentio –
traditional doctrines of equity. See, e.g., United States v. W.T.
Grant Co., 345 U.S. 629, 632–33 (1958); Hecht Co. v. Bowles,
321 U.S. 321, 328 (1944).
In § 16 of the Clayton Act, the entities entitled to sue for an
antitrust injunction are any “person,” “firm,” “corporation,” or
“association.” If these entities sue, they will be subject to “the
same conditions and principles” for injunctive relief applicable
in courts of equity. 15 U.S.C. § 26. One of those “conditions”
or “principles” is laches. See, e.g., Aurora Enterprises, Inc. v.
National Broadcasting Co., Inc., 688 F.2d 689, 694 (9th Cir.
1982); Midwestern Mach. Co. v. Northwest Airlines, Inc., 392
F.3d 265, 277 (8th Cir. 2004); Steves and Sons, Inc. v. JELD-
WEN, Inc., 988 F.3d 690, 716–17 (4th Cir. 2021).
The States do not deny any of what we have just written
about § 16. That is, they do not deny that under § 16, any
natural “person” authorized to sue for an injunction is subject to
laches. And they do not deny that laches would forbid, after a
time, what might have been a plaintiff’s valid cause of action if
it had been brought earlier.
Rather, the States’ argument is that as “sovereigns” they are
exempt from laches. That proposition, essential to the States’
argument, is rather shaky. As Judge Posner pointed out, “the
availability of laches in at least some government suits is
supported by Supreme Court decisions, notably Occidental Life
Ins. Co. v. EEOC, 432 U.S. 355, 373 (1977); Heckler v.
Community Health Services of Crawford County, Inc., 467 U.S.
51, 60–61 (1984), and Irwin v. Department of Veterans Affairs,
498 U.S. 89, 95–96 (1990), that refuse to shut the door
completely to the invocation of laches or estoppel (similar
16
doctrines) in government suits.” United States v. Admin.
Enterprises, Inc., 46 F.3d 670, 672–73 (7th Cir. 1995). To this
list we add United States v. Diamond Coal & Coke Co., 255
U.S. 323, 333–34 (1921); Kansas v. Colorado, 514 U.S. 673,
687–89 (1995), and the antitrust case of California v. American
Stores Co., 495 U.S. 271, 296 (1990); see also id. at 297–98
(Kennedy, J., concurring).
The States’ claim of immunity from laches encounters
another difficulty – it tends to place the States on the horns of a
dilemma. To be entitled to sue for an injunction under the
antitrust laws the States must be – again in the words of § 16 –
any “person, firm, corporation, or association.” We know that
a State is not a “firm” and that a State is not a “corporation”4 or
an “association.” All that remains is the prospect that a State is
a “person.” But under § 16, a “person,” as we have already
mentioned, is clearly subject to laches. See, e.g., 15 U.S.C.
§ 26; 2 Philip E. Areeda & Herbert Hovenkamp, Antitrust Law:
An Analysis of Antitrust Principles and Their Application
¶ 320g, at 390 (5th ed. 2021); Aurora Enterprises, 688 F.2d at
694; Midwestern Mach. Co., 392 F.3d at 277; Steves and Sons,
988 F.3d at 716–17.
On the other horn, the States come close to arguing
themselves out of court when they insist on being treated not as
natural “persons,” but instead as “sovereigns.” If they are
correct, how is it that § 16 authorizes them to sue for an
injunction? When a comparable issue arose in another antitrust
case – not about “sovereign” States but about the “sovereign”
United States – the Supreme Court in United States v. Cooper
4
Unless perhaps if the State sued its proprietary capacity. See
Georgia v. Pennsylvania R. Co., 324 U.S. 439, 469 (1945) (C.J.
Stone, dissenting, joined by Justices Roberts, Frankfurter and
Jackson).
17
Corp., 312 U.S. 600 (1941), answered that the United States as
a “sovereign” was therefore not “[a]ny person” entitled to sue
for treble damages under § 7 of the Sherman Act,5 id. at 604,
614; see also infra note 8.
The Supreme Court has also decided that a federal agency
is not a “person” entitled to challenge the issuance of a patent.
See Return Mail, Inc. v. United States Postal Service, 139 S.Ct.
1853, 1867 (2019). And in Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000),
the Court held that neither a State nor a State agency was “any
person” subject to an action under the False Claims Act.6 See id.
at 787–88. In each of these cases, the Court applied its
“longstanding interpretive presumption that ‘person’ does not
include the sovereign.” Id. at 780; Return Mail, 139 S.Ct. at
1861–62. This presumption, the Court wrote, reflects “common
usage,” United States v. Mine Workers, 330 U. S. 258, 275
(1947), as well as the express directive in the Dictionary Act, 1
5
In its current form, the relevant portion of § 7 (15 U.S.C.
§ 15(a)) provides:
[A]ny person who shall be injured in his business or
property by reason of anything forbidden in the
antitrust laws may sue therefor in any district court of
the United States in the district in which the
defendant resides or is found or has an agent, without
respect to the amount in controversy, and shall
recover threefold the damages by him sustained, and
the cost of suit, including a reasonable attorney’s fee
. . ..
6
The False Claims Act, 31 U.S.C. § 3729(a)(1)(A), imposes
liability on “any person” who, inter alia, “knowingly presents, or
causes to be presented, a false or fraudulent claim for payment or
approval.”
18
U.S.C. § 1.7
Despite this substantial body of law, two Supreme Court
decisions in the 1940s treated a State as a “person” entitled to
sue pursuant to the federal antitrust laws.8 See Pennsylvania R.
Co., 324 U.S. at 447; Evans, 316 U.S. at 162–63. The States cite
these two cases as authority. But the States cannot explain how
either case advances their objection to laches. Evans decided
that a State, claiming a direct injury in its proprietary capacity,
qualified as a “person” entitled to sue for damages pursuant to
§ 7 of the Sherman Act. See 316 U.S. at 160, 162–63.9
Georgia v. Pennsylvania Railroad held that a State, appearing
as parens patriae, qualified as a “person” entitled to sue for an
injunction under § 16. See 324 U.S. at 447. Neither opinion
parsed the language of the pertinent statutes or offered any
analysis of them. But we take each decision as a starting point,
as we must.
Unlike the State in Georgia v. Evans, the States here are not
7
The Dictionary Act, 1 U.S.C. § 1, provides that in “determining
the meaning of any Act of Congress, unless the context indicates
otherwise . . . the words ‘person’ and ‘whoever’ include corporations,
companies, associations, firms, partnerships, societies, and joint stock
companies, as well as individuals.” States are not included in the
definition of “person.”
8
Sometimes but not always. See Kansas v. Utilicorp United,
Inc., 497 U.S. 199, 219 (1990); Hawaii v. Standard Oil Co., 405 U.S.
251, 252–53 (1972).
9
The Court’s opinion in that case simply announced that
Congress could not possibly have meant to exclude States from being
able to sue for damages suffered in their proprietary capacity. See
Evans, 316 U.S. at 162–63.
19
suing in their proprietary capacity. When Facebook challenged
the States’ standing in the district court, the States defended on
the ground that they were suing as parens patriae, as in
Georgia v. Pennsylvania Railroad.
The concept of parens patriae “is murky and its historic
credentials are of dubious relevance.” In re Gault, 387 U.S. 1,
16 (1967), abrogated on other grounds by Allen v. Illinois, 478
U.S. 364 (1986). “The phrase was taken from chancery practice,
where, however, it was used to describe the power of the state
to act in loco parentis for the purpose of protecting the property
interests and the person of the child.”10 Id. That history has
“little” – or more accurately, nothing – “to do with the concept
of parens patriae standing that has developed in American law.”
Alfred L. Snapp & Son, 458 U.S. at 600.
In the Georgia v. Pennsylvania Railroad opinion, the Court
wrote that “we are of the opinion that Georgia as parens
patriae . . . asserts a claim within judicial cognizance. The
complaint of Georgia in those respects is not of a political or
governmental character.” 324 U.S. at 445. By this the Court
necessarily meant that a § 16 State parens patriae suit is a
private action – if it is not of “governmental” or “political”
character, the obvious character left is “private.”
10
More history of parens patriae as it developed in this country
is set forth in Standard Oil Co., 405 U.S. at 257–60; Alfred L. Snapp
& Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600–08
(1982); J. Ratliff, Parens Patriae: An Overview, 74 Tulane L. Rev.
1847 (2000); and G. B. Curtis, The Checkered Career of Parens
Patriae: The State as Parent or Tyrant, 25 DePaul L. Rev. 895 (1976).
The Court in the Hawaii case held that a State, suing as parens
patriae , was not a “person” entitled to recover treble damages. 405
U.S. at 265. Congress amended the Clayton Act to allow State parens
patriae actions for damages, but “only on behalf of resident natural
persons.” Utilicorp United, Inc., 497 U.S. at 216.
20
That is how the Supreme Court treated such a case decades
later in California v. American Stores. Like the States here,
California brought a parens patriae suit invoking § 16 of the
Clayton Act. See id. at 274–75. The Supreme Court’s opinion
repeatedly and consistently referred to California as a “private
part[y],” and to California’s lawsuit as a “private suit,” and to
State § 16 suits as “private enforcement.” American Stores, 495
U.S. at 285, 294, 296 (quoting Graves v. Cambria Steel Co., 298
F. 761, 762 (S.D.N.Y. 1924) (Hand, J.)). After describing
California’s suit as a private action, the Court added that
“equitable defenses such as laches . . . may protect
consummated transactions from belated attacks by private
parties when it would not be too late for the Government to
vindicate the public interest.” Id. at 296. This quotation
suggests that, with respect to laches, the Court may have been
drawing a line between State parens patriae antitrust actions and
antitrust suits by the federal government. But it may be that we
are reading too much into the Court’s words. Justice Kennedy,
on the other hand, made it fairly plain that he would apply
laches to State antitrust suits as parens patriae. See id. at 298
(Kennedy, J., concurring).
The States’ counter-arguments are that in § 16, Congress
could not have meant laches to apply to them because, after all,
they are sovereign governments and are very busy protecting
their residents and their citizens and others arriving at their
borders. Therefore, because States are so busy and have so
much to do, they should not be subjected to time constraints on
when they have to take action against antitrust violations by
national companies operating in their State so they can protect
their constituents. The States have a point, but it does not
differentiate them from “any person” who might suffer from any
antitrust violation, “persons” who have far fewer resources than
State governments, and who are doubtless busy on other matters,
and yet are clearly subject to laches. And it does not explain
21
why a later Congress subjected States to the same four-year
limitation period for bringing parens patriae antitrust suits for
damages. See 15 U.S.C. §§ 15b, 15c(a)(1).
We are dealing with what is ultimately a matter of
“statutory interpretation.” Block v. North Dakota ex rel. Bd. of
Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). The States insist
that they are “persons” under § 16. Nothing in the language of
that provision, or in its history, indicates that they are exempt
from the equitable constraints that § 16 imposes on “[a]ny
person,” or that the States should be treated as “special persons.”
For these reasons, we agree with the district court that under
§ 16, laches applies to a State’s parens patriae suit such as this
one. See Facebook I, 549 F. Supp. 3d at 40.
The question thus becomes whether the district court
correctly held that Facebook established its laches defense.
Delay in laches is measured by the length of time “between
accrual of the claim and suit.” Gull Airborne Instruments, Inc. v.
Weinberger, 694 F.2d 838, 843 (D.C. Cir. 1982). The States’
causes of action accrued in 2012 when Facebook acquired
Instagram and in 2014 when Facebook acquired WhatsApp. Yet
the States did not file their Complaint until December 2020.
The district court held that “the States’ long delays were
unreasonable and unjustified as a matter of law.” Facebook I,
549 F. Supp. 3d at 36. Relying on antitrust cases from other
circuits, the court used the four-year statute of limitations for
damage actions (15 U.S.C. § 15b) as a “guideline” for
determining what amounted to undue delay. Id. at 34 (quoting
Oliver v. SD-3C LLC, 751 F.3d 1081, 1085 (9th Cir. 2014)).
This is consistent with the practice acknowledged in
Holmberg v. Armbrecht, 327 U.S. 392 (1946): statutes of
limitation “have been drawn upon by equity solely for the light
22
they may shed in determining that which is decisive for the
chancellor’s intervention, namely, whether the plaintiff has
inexcusably slept on his rights so as to make a decree against the
defendant unfair.” Id. at 396. As the district court explained,
using the four-year limitation period in this way is “particularly
appropriate for challenges to acquisitions” because the typical
remedy of divestiture, “if ordered well after the merger has
closed, will usually prejudice the defendant.”11 Facebook I, 549
F. Supp. 3d at 35.
The States were on notice of Facebook’s two major
acquisitions. Both were publicized. The Federal Trade
Commission conducted a lengthy, publicly reported,
investigation to determine whether Facebook’s acquisition of
Instagram would violate the antitrust laws.12 Id. at 36. As to
WhatsApp, the States’ Complaint acknowledges both that the
FTC investigated the acquisition and that analysts at the time of
its acquisition indicated that Facebook was trying to eliminate
a potential competitor, “which” – as the district court correctly
stated – “perfectly summarizes Plaintiffs’ exact theory of the
case against the WhatsApp acquisition.” Id. And as the district
court noted, the States never argued below that their delay was
11
A leading antitrust treatise concludes that when a plaintiff seeks
divestiture (or other relief that is “retroactive in nature”), the four-year
time limit derived from the statute of limitations “should be absolute.”
2 Areeda & Hovenkamp, supra, ¶ 320g, at 392.
12
The FTC closed this investigation without taking action. See
Press Release, Federal Trade Comm’n, FTC Closes Its Investigation
Into Facebook’s Proposed Acquisition of Instagram Photo Sharing
Program (Aug. 22, 2012), https://www.ftc.gov/news-events/
news/press-releases/2012/08/ftc-closes-its-investigation-facebooks-
p r o p os e d -a c q u i s it i o n -i n stagram-p h oto-s h a ri n g -p r o g r a m
[https://perma.cc/U7Y7-VT6S].
23
reasonable because “they ‘had good reason for not’ suing
earlier.” Facebook I, 549 F. Supp. 3d at 41 (quoting Menominee
Indian Tribe of Wis. v. United States, 614 F.3d 519, 532 (D.C.
Cir. 2010)).
We thus agree with the district court that the States unduly
delayed in bringing suit.13 The remaining question is whether
Facebook was prejudiced as a result of the 8 year and 6 year
delay.
For laches purposes, prejudice may arise for the same
reasons we have statutes of limitation. “There comes a time
when [the defendant] ought to be secure in his reasonable
expectation that the slate has been wiped clean of ancient
obligations, and [the defendant] ought not to be called to resist
a claim when ‘evidence has been lost, memories have faded, and
witnesses have disappeared.’” Note, Developments in the Law:
Statutes of Limitation, 63 Harv. L. Rev. 1177, 1185 (1950)
(quoting Ord. of R.R. Telegraphers v. Ry. Express Agency, Inc.,
321 U.S. 342, 349 (1944)).
The “prejudice” Facebook asserts is related. It is the effect
of the States’ delaying their suit until years after Facebook had
absorbed and merged with the acquired companies. Mergers
“normally lead to progressive integration of the assets and
operations of the merged firms, and to investment and other
13
For the reasons the district court stated, see Facebook I, 549 F.
Supp. 3d at 44–48, we reject the States’ argument that the Instagram
and WhatsApp acquisitions remain “subject to challenge now”
because they are part of a “course of conduct [that] remains ongoing.”
Appellants’ Br. at 40. See also Douglas H. Ginsburg & Korin
Wong-Ervin, Challenging Consummated Mergers Under Section 2,
Comp. Pol’y Int’l, May 2020, at 6–7.
24
business decisions that are contingent on the new situation.”14
The more the merged firms are joined together, the more costly
and difficult to separate. Here, the States alleged that Facebook
spent years before the States’ suit working to “integrate”
Instagram, Complaint ¶ 115; that Facebook “combined”
WhatsApp data “across all Facebook products,” Complaint
¶ 177; and that, as one would expect, Facebook modified its own
products and services in reliance on the acquisitions,15
Complaint ¶¶ 124, 127, 176–77. And so now an injunction
breaking up Facebook, ordering it to divest itself of Instagram
and WhatsApp under court supervision, would have severe
consequences, consequences that would not have existed if the
States had timely brought their suit and prevailed.
The district court summed up this way. “The facts alleged
in the Complaint, moreover, confirm the existence of economic
prejudice here. According to the States, for the last five-plus
years [since 2016 and before] Facebook has made business
decisions and allocated firm resources based on holding
Instagram and WhatsApp, and it has also integrated their
14
2 Areeda & Hovenkamp, supra, ¶ 320g, at 392. This is why the
authors add that “the laches period should certainly be no longer than
the limitation period for damages . . ..” Id. at 393.
15
Allegations in the States’ Complaint, although offered as an
example of Facebook’s anti-competitive conduct, illustrate the
prejudice of untangling companies when suits against mergers are long
delayed. For instance, Facebook decided to “scale back or cancel” its
plans to develop Facebook Camera, a photo-sharing feature, “since
[Facebook was] acquiring Instagram.” Complaint ¶ 124. Facebook
thus “allowed [Facebook Camera] to die, discontinuing it entirely in
2014.” Id.
25
offerings to some extent into its core business.”16 549 F. Supp.
3d at 37. To be sure, a “complaint seldom will disclose
undisputed facts clearly establishing the defense” of laches.
Menominee Indian Tribe, 614 F.3d at 532. Under the facts
alleged here, however, we agree with the district court that the
defense applies.
This dispenses with Counts 2 and 3, and with the portions
of Count 1 that refer to the Instagram and WhatsApp
acquisitions.
III.
Another portion of Count 1 deals with Facebook’s Platform
and its practices and policies, adopted years ago and now
abandoned. One of the two Facebook policy statements to
which the States object was adopted in 2011. The other in 2013.
The States’ Complaint quotes a snippet of each. As we shall
discuss, the States’ quotations are accurate. The messages they
seek to convey are not.
Over the years Facebook promulgated and amended a list of
“Platform Policies.” Complaint ¶ 73. The company’s
statements, disseminated to third-party developers of
16
The ongoing FTC lawsuit (and the possibility that the district
court may order divestiture in that suit) does not prevent the States’
suit from causing prejudice. The outcome of the FTC suit is uncertain.
Even if the FTC persuades the district court that the WhatsApp and
Instagram acquisitions were anti-competitive, Facebook “can still
prevent divestiture by showing that the balance of hardships . . . tips
in its favor.” Steves & Sons, 988 F.3d at 717. So permitting the States
to proceed would still risk creating additional prejudice for Facebook
relative to the FTC suit. The States point to no authority suggesting
that dilatory plaintiffs can shield their own lawsuits from laches by
pointing to other suits that seek similar relief of the same defendant.
26
applications, informed them of what Facebook expected if it
were to permit their products to interact with Facebook
Platform.
The app developers paid nothing to gain access to Facebook
Platform. It was a privilege, and one highly sought. According
to the States’ Complaint, more than “10 million apps and
websites had integrated with Facebook by May 2013.”
Complaint ¶ 194.
The States assert that Facebook’s imposition of two aspects
of its Platform Policies over the years violated § 2 of the
Sherman Act. Sherman Act § 2 makes it unlawful for a firm to
“monopolize” or “attempt to monopolize,” but it does not make
having a monopoly in itself unlawful. 15 U.S.C. § 2. “A firm
violates § 2 only when it acquires or maintains, or attempts to
acquire or maintain, a monopoly by engaging in exclusionary
conduct ‘as distinguished from growth or development as a
consequence of a superior product, business acumen, or historic
accident.’” United States v. Microsoft Corp., 253 F.3d 34, 58
(D.C. Cir. 2001) (quoting United States v. Grinnell Corp., 384
U.S. 563, 571 (1966)); see also id. (“The successful competitor,
having been urged to compete, must not be turned upon when he
wins.” (quoting United States v. Aluminum Co. of Am., 148 F.2d
416, 430 (2d Cir. 1945) (Hand, J.))). Thus, the “mere possession
of monopoly power . . . is not only not unlawful; it is an
important element of the free-market system.”17 Verizon
Commc’ns Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S.
398, 407 (2004).
Facebook urges us to affirm “the district court’s dismissal
17
See generally Robert H. Bork, The Antitrust Paradox: A Policy
at War with Itself 58–62 (1978).
27
of the Platform-based claims . . . on the ground that, like the
acquisition-related clams, they are barred by laches.”
Appellee’s Brief at 54. We will not decide whether laches bars
those claims. The district court expressed no opinion on that
issue because Facebook, in its Motion to Dismiss, did not raise
the affirmative defense of laches with respect to the Platform
Count. Cf. Fed. R. Civ. P. 8(c)(1).
Nevertheless, we agree again with Judge Boasberg’s
comprehensive and well-reasoned opinion determining that the
States’ Platform-based allegations failed to state a cause of
action.18
A.
In summary, the States’ allegations about Facebook’s
competitor integration policy did not set forth a violation of § 2
of the Sherman Act, for the reasons Judge Boasberg stated in his
opinion. See Facebook I, 549 F. Supp. 3d at 33. The States
quoted a part of this Facebook “policy” regarding “access to its
Platform APIs.” Complaint ¶ 199. Now in this appeal they
protest that the district court’s opinion wrongly relied on a full
quotation of the full policy in the FTC’s complaint against
Facebook, filed on the same day as the States’.
The States’ Complaint alleged this:
“In 2011, Facebook adopted a policy aimed at
forbidding ‘competing social platforms,’ and any apps
that linked or integrated with competing social
18
We may, as did the Supreme Court in a similar case, reject the
States’ allegations on their merits before addressing antitrust standing,
which is a matter of statutory not constitutional jurisdiction. See
Trinko, 540 U.S. at 416 n.5.
28
platforms, from accessing its APIs.” Complaint ¶ 199
The FTC’s complaint, filed on the same day, alleged this:
“On July 27, 2011, Facebook introduced a new policy
that ‘Apps on Facebook may not integrate, link to,
promote, distribute, or redirect to any app on any other
competing social platform.’” FTC Complaint ¶ 139.
There is a difference between these two versions, a legal
difference, and the district court noticed it.
As a result, the district court “d[id] not accept” the States’
claim that Facebook’s policy applied to “any apps that linked or
integrated with competing social platforms,” and not just to
“canvas apps,” because that claim was “inconsistent with the
text of the 2011 policy, which the FTC quote[d].” Facebook I,
549 F. Supp. 3d at 19.
On appeal, the States do not dispute the accuracy of the
FTC’s quotation of Facebook’s 2011 policy. (Nor does the
United States as amicus curiae question the district court’s
conclusion that the FTC’s complaint accurately quotes
Facebook’s 2011 policy. See United States Amicus Br. at
16–17.) We agree with the district court that it was proper to
consider the actual text of Facebook’s 2011 policy, as quoted in
the FTC’s complaint.
“A federal court may take judicial notice of ‘a fact that is
not subject to reasonable dispute’” if the fact “can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned.” Hurd v. D.C., Gov’t, 864 F.3d 671,
686 (D.C. Cir. 2017) (quoting Fed. R. Evid. 201(b)). Both
requirements are satisfied here.
29
The FTC’s complaint is particularly suitable for judicial
notice because we often take “judicial notice of facts on the
public record . . . as a court may do upon a motion to dismiss.”
Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222
(D.C. Cir. 2005); see also Mack v. S. Bay Beer Distrib., Inc., 798
F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104
(1991). Moreover, multiple other sources corroborate that the
text of Facebook’s 2011 policy is precisely what the FTC’s
complaint asserts, confirming that the FTC’s complaint is
accurate.
An archived webpage showing “Facebook Platform
Policies” as of July 27, 2011, contains the identical text. See
Facebook Platform Policies, Facebook (July 27, 2011),
https://developers.facebook.com/policy/
[https://web.archive.org/web/20110805092701/https:/develop
ers.facebook.com/policy/]. The “contents of webpages available
through the Wayback Machine” constitute “facts that can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Valve Corp. v. Ironburg
Inventions Ltd., 8 F.4th 1364, 1374 (Fed. Cir. 2021) (quotation
omitted). The archive also confirms what one might expect
from a platform policy meant to guide the actions of outside app
developers: the policy that the States challenge here was
publicly posted and was just one of many that Facebook issued.
Multiple news articles from the summer of 2011 quote the
identical policy text from the FTC’s complaint and the archived
webpage. See Facebook Quietly Updates Platform Policies -
Developers, No Linking To Its Competitors!, TechCrunch (Aug.
12, 2011, 3:12 PM EDT), https://techcrunch.com/2011/08/12/
facebook-quietly-updates-platform-policies-developers-take-n
ote/ [https://perma.cc/X82X-FTPJ]; Brandy Shaul, Have
Facebook's Platform Policy Changes Killed Free Cash
Promotions? Yahoo! (Aug. 12, 2011), https://www.yahoo.com/
video/2011-08-12-facebook-platform-policy-changes.html
[https://perma.cc/WR3H-MKKS]; Josh Constine, Facebook
Prohibits Promotion of Apps on Competing Social Platforms,
Unapproved Soft Offers, AdWeek (Aug 12, 2011),
30
h t t p s : / / w w w . a d w e e k . c o m / p e r f o r m a n c e - m a r k e t i n g/
prohibit-promotion-competing-social-platforms/
[https://perma.cc/6WSD-YGCP].
These sources render the actual text of Facebook’s 2011
policy “accurately and readily determined” and confirm that the
FTC’s complaint is a “source[] whose accuracy cannot
reasonably be questioned.” Hurd, 864 F.3d at 686 (quoting Fed.
R. Evid. 201(b)). By the same token, the text of that 2011
policy is “not subject to reasonable dispute.” Id. (quoting Fed.
R. Evid. 201(b)).
The district court thus properly considered the actual text of
Facebook’s 2011 policy as quoted in the FTC’s complaint and
properly disregarded the States’ allegations where those
allegations were contrary to the policy’s text.
In light of the complete text of Facebook’s competitor
integration policy, we reject the States’ challenge to that policy.
The States refer to Facebook’s policy as a form of “conditional
dealing” but the district court correctly analyzed the policy
under cases discussing “exclusive dealing.” Facebook I, 549 F.
Supp. 3d at 31; see also BRFHH Shreveport, LLC v.
Willis-Knighton Med. Ctr., 49 F.4th 520, 529 (5th Cir. 2022).
As the district court explained, the competitor integration policy
is nothing like the exclusive dealing from Lorain Journal Co. v.
United States, 342 U.S. 143 (1951), the case on which the States
rely. There, a newspaper prohibited its advertising customers
from also advertising on the local radio station. See id. at 149.
Here, the competitor integration policy limits only how canvas
apps on Facebook operate, and leaves app developers entirely
free to develop applications for Facebook’s competitors. The
district court correctly found that the States’ exclusive dealing
theory fails as a matter of law.19
19
It appears that by at least 2013, Facebook’s Platform Policies
omitted the competitor integration policy. See supra note 2 and
accompanying text. If Facebook terminated this policy by 2013, this
would militate against the Court’s exercise of its equitable discretion
in the States’ favor. See Penthouse Int’l, Ltd. v. Meese, 939 F.2d
31
In addition, for an exclusive dealing claim to survive a
motion to dismiss the plaintiffs must adequately allege that the
exclusive contract “caused substantial market foreclosure.”
BRFHH Shreveport, 49 F.4th at 530; see also Microsoft Corp.,
253 F.3d at 69; Vazquez-Ramos v. Triple-S Salud, Inc., 55 F.4th
286, 301 (1st Cir. 2022). Here, the States allege only that the
competitor integration policy “discouraged developers from
creating apps that bridged” multiple social networks. Complaint
¶ 199. Their allegation does not explain, for instance, the
importance of cross-network apps to Facebook’s competitors,
what fraction of developers were discouraged, or whether
network-bridging apps were the “most efficient channels” for
Facebook’s competitors to acquire users. Microsoft, 253 F.3d
at 70. The States thus have not adequately alleged that this
policy substantially foreclosed Facebook’s competitors, giving
us an additional reason to reject their exclusive dealing theory.20
B.
This brings us to the States’ claim that Facebook published
in its 2013 list of Platform Policies for app developers a policy
that “forbid applications that ‘replicat[e] [Facebook’s] core
functionality.’” Complaint ¶ 201 (alterations in original).
Here too the States’ quotation is accurate but incomplete
and so is misleading. The full text of this Platform policy
statement in 2013 was:
Reciprocity and Replicating core functionality: (a)
Reciprocity: Facebook Platform enables developers to
build personalized, social experiences via the Graph
API and related APIs. If you use any Facebook APIs to
1011, 1019 (D.C. Cir. 1991).
20
We would reach the same conclusion even if we accepted the
States’ interpretation of Facebook’s competitor integration policy.
Either way, the States have failed to adequately allege substantial
foreclosure on these allegations.
32
build personalized or social experiences, you must also
enable people to easily share their experiences back
with people on Facebook. (b) Replicating core
functionality: You may not use Facebook Platform to
promote, or to export user data to, a product or service
that replicates a core Facebook product or service
without our permission.
The words we have put in italics are critical. The full text
shows that Facebook was prohibiting developers from using
Facebook’s Platform to duplicate Facebook’s core products.
The States’ basic allegation – that Facebook “cut off”
competitors from “access to . . . [Facebook’s] immensely
valuable network,” Complaint ¶ 13 – thus amounts to a “claim
based upon the defendant’s refusal to cooperate with its
competitor[s].” Covad Commc’ns, 398 F.3d at 673.
To consider Facebook’s policy as a violation of § 2 would
be to suppose that a dominant firm must lend its facilities to its
potential competitors. That theory of antitrust law runs into
problems under the Supreme Court’s Trinko opinion. See 540
U.S. at 407–15. We note in particular that courts should proceed
cautiously when asked to deem novel products or practices anti-
competitive. Many innovations may seem anti-competitive at
first but turn out to be the opposite, and the market often
corrects even those that are anti-competitive. Similarly, if courts
required firms to lend their facilities to competitors, courts
would have to manage corporations’ business affairs, a role for
which the judiciary is ill suited. The Supreme Court in Trinko
thus held “that a firm with no antitrust duty to deal with its rivals
at all is under no obligation to provide those rivals with a
‘sufficient’ level of service.” Pac. Bell Tel. Co. v. linkLine
Commc’ns, Inc., 555 U.S. 438, 444 (2009) (quoting Trinko, 540
U.S. at 410).
The Trinko Court further stated that there are only a “few
existing exceptions from the proposition that there is no duty to
aid competitors,” one of which results from Aspen Skiing Co. v.
Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), a case “at
33
or near the outer boundary of § 2 liability,” Trinko, 540 U.S. at
409, 411. To fit itself within that exception, a plaintiff must
allege that, among other things, before the defendant refused its
competitors access the defendant “voluntarily engaged in a
course of dealing with its rivals, or would . . . have done so
absent statutory compulsion.” Trinko, 540 U.S. at 409.
Facebook’s core functionality policy, as quoted above, does not
fit Aspen Skiing’s exception to the extent it applied to apps with
which Facebook had no prior course of dealing.
The States also cite specific examples when Facebook
applied the core functionality policy to disconnect potential
rivals, and claims that “ongoing violations” require injunctive
relief. Appellants’ Br. at 44. But under § 16, injunctions are
available “under the same conditions and principles as injunctive
relief . . . is granted by courts of equity,” 15 U.S.C. § 26, and
such “equitable relief[] is discretionary,” Meese, 939 F.2d at
1019.
The States cite seven instances when Facebook allegedly
banned rivals from Facebook Platform under the core
functionality policy. Complaint ¶¶ 207–29. Those seven were
but a drop in the bucket of the “10 million apps and websites”
that “had integrated with Facebook by May 2013.” Complaint
¶ 194. Facebook banning these seven, even if the States’
allegations are correct, would not amount to any “continuing
harm” to the States’ constituents, Complaint ¶ 245, and a court
order to Facebook would serve no antitrust purpose. De minimis
non curat lex. Cf. Wis. Dep’t of Revenue v. William Wrigley,
Jr., Co., 505 U.S. 214, 231 (1992). As the district court put it,
we “cannot turn back the clock to 2013, 2014, or 2015.”
Facebook I, 549 F. Supp. 3d at 30. It makes no sense to require
Facebook to foreswear a policy that ended in 2018, or to provide
Facebook Platform access to a handful of companies which are
either defunct or have changed their business model ever since
Facebook banned them. Injunctive relief would be unwarranted
even if the States could prove their allegations.
The States also allege that Facebook used its control over
Platform to “degrade the functionality and distribution of
34
potential rivals’ content.” Complaint ¶ 205. This is another way
of saying that Facebook refused to deal with its rivals on the
rivals’ preferred terms. In Trinko the defendant telephone
company sometimes “failed to fill” its rivals’ orders “at all,” but
other times only failed to fill its rivals’ orders “in a timely
manner” or filled its rivals’ orders “after filling those for its own
local phone service.” 540 U.S. at 404–05. Yet the Supreme
Court treated all of the company’s actions, and inactions, as
refusals to deal. See id. at 406–411. And in a later case the
Court added that as “a general rule, businesses are free to choose
the parties with whom they will deal, as well as the prices,
terms, and conditions of that dealing.” Pac. Bell Tel. Co., 555
U.S. at 448.
The United States as amicus curiae argues that the States’
policy-related allegations are “fundamentally different from
challenges to unilateral refusals to deal.” United States Amicus
Br. at 15. This is so, the United States argues, because refusals
to deal harm competition by “withhold[ing] valuable access
from rivals,” and may leave “them weakened and less
competitive,” whereas Facebook’s policies had different effects.
Id. We disagree. The States alleged that when Facebook
banned a rival under the core functionality policy, the rival
“suddenly lost access” to Facebook Platform, “devastating” the
rival and leaving it with “broken or buggy features.” Complaint
¶ 202. The policy thus accomplished what the United States
admits unilateral refusals do as well: “withhold valuable access
from rivals” “leaving them weakened and less competitive.”
United States Amicus Br. at 15.
Affirmed.