The States’ novel theory of liability would erode the procompetitive aims of antitrust law and force courts into the improper role of central planners in matters of cutting-edge and fast-moving technological innovation.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

WASHINGTON, DC— Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the D.C. Circuit to affirm a federal trial court’s dismissal of antitrust claims against Facebook for denying its competitors the free use of its platform to harm Facebook’s core business. WLF was joined on the amicus brief by the Information Technology and Innovation Foundation (ITIF). The brief was prepared with the generous pro bono assistance of Zack Tripp and Mark Pinkert at Weil, Gotshal & Manges LLP.

The case arises from a suit by a group of 46 States (plus Guam and the District of Columbia) against Facebook for alleged violations of Section 2 of the FTC Act. Dismissing the States’ Section 2 claims, the U.S. District Court for the District of Columbia explained that under the Supreme Court’s Aspen Skiing framework, a business’s choice to announce that it will not help rivals and to prospectively decline to do so is categorically lawful. On appeal, the States ask the D.C. Circuit to treat Aspen as a “flexible” test that is apparently satisfied by a refusal to deal coupled with mere evidence of a purpose to “harm competitors.”

In its amicus brief urging affirmance, WLF asks the appeals court to decline the States’ effort to radically expand refusal-to-deal liability. First, the States’ argument that Aspen provides a “flexible” and open-ended test conflicts with Verizon Communications v. Trinko, which foreclosed a general duty to deal and emphasized that Aspen’s refusal-to-deal exception was “limited.” Second, the fast-moving and ever-changing market here is particularly unsuited to imposing novel duties to deal, making the States’ proposed expansion of Aspen even more problematic. Finally, judicial creation of a novel duty to deal with competitors in this fast-changing and highly competitive industry would threaten to harm competition and consumers. It would discourage growth and create a powerful incentive to free-ride on others’ success.