On April 27, 2023, the D.C. Circuit affirmed 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. The decision was welcome news for WLF, which filed an amicus brief in the case urging affirmance. The appeal arose 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. In its brief, WLF asked the appeals court to decline the States’ effort to radically expand refusal-to-deal liability under Section 2. Among other things, 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. Writing for the panel, Judge Randolph agreed: “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.” WLF’s brief was prepared with the generous pro bono assistance of Zack Tripp and Mark Pinkert at Weil, Gotshal & Manges LLP. WLF was joined on the brief by the Information Technology and Innovation Foundation (ITIF).


WLF amicus brief