FTC has an opportunity for a do-over in its ‘fiasco’ antitrust case towards Fb, authorized specialists contend

Could the second time attracting the Federal Trade Commission in its antitrust prosecution be Facebook Inc.?

Lawyers are not so sure about that.

The FTC’s setback in federal court in Washington, DC, on Monday could have a silver lining: Two rulings dismissing the agency and state antitrust lawsuits against Facebook FB, + 1.22%, could ultimately lead to a revised – and stronger one – Make a complaint. Experts says. (Federal Judge James Boasberg dismissed the FTC lawsuit because it did not support their claims that Facebook had a dominant market share.)

Read more: Richter dismisses FTC’s Facebook antitrust lawsuit

“It’s hard for the FTC to have a worse case. As every prosecutor knows and as the judge made clear, the FTC has to present facts, not feelings, ”Carl Szabo, vice president and general counsel of NetChoice, an industry group funded by Facebook, Amazon and Google, told MarketWatch. “And even using the FTC’s fictional market definition of ‘Personal Social Networking Services’, Facebook has no way of having market power when consumers have choices like TikTok, Snapchat SNAP, -0.23%.,
Discord and Twitter TWTR, -1.95%, to name a few. “

“I hope the FTC has learned its lesson and is avoiding further embarrassment by dropping this lawsuit altogether,” said Szabo. “But I worry that the power of belief will overcome the rational realization that maybe the FTC should take the loss and move on to a real problem that actually harms consumers.”

Antitrust attorney Doug Gansler, former Maryland attorney general, is more blunt: “I don’t see where you see hope in a retrial. This is a free service for more than 3 billion people. ”

An FTC spokesman told MarketWatch that the commission is “carefully reviewing the opinion and considering the best option for the future.”

Should it decide to file an amended complaint within the required 30 days, antitrust experts argue, it could only support what many have called a “fiasco”.

“The FTC under the previous one [Trump] The government has filed an ill-considered lawsuit, ”Bhaskar Chakravorti, dean of global business at Tufts University’s Fletcher School, told MarketWatch. “It should come as no surprise that these lawsuits wind their way through the courts and take decades to close – which often results in a deal. What was shocking here is how quickly the judge kicked this one out. “

Newly appointed FTC chairman Lina Khan, an expert on big tech domination and prescriptive measures, has a “chance to reformulate the indictment against Facebook by putting her ideas into practice,” Chakravorti said. “But these are emergency solutions. The FTC was not created to pursue the range of novel issues and political compromises that the digital industry is creating. “

Alden Abbott, a senior research fellow at the Mercatus Center at George Mason University who was General Counsel of the FTC until January, said the original complaint was based on tight antitrust laws.

“The FTC can appeal, they could submit more details showing that Facebook is a monopoly power, or they can file an administrative complaint and file an injunction,” he told MarketWatch. “Neither of them is a great option. The FTC faces a real risk in pursuing an action. ”

Facebook, which welcomed Monday’s rulings in recognition of “flaws in government complaints filed against Facebook,” has barely deteriorated since the FTC’s first lawsuit in December.

The company topped $ 1 trillion for the first time on Monday, and analysts surveyed by FactSet expect the social media powerhouse to hit $ 27.8 billion in the June quarter and $ 115.6 billion in the fiscal year -Dollars will generate sales.

Ultimately, the FTC’s approach boils down to threading a needle, says Gansberg. Not only does it have to refine its complaint against Facebook, it also has to anticipate where antitrust law will lead.

In fact, Monday’s rulings highlight the importance of lawmakers passing laws that update antitrust law and provide regulators with more legal ammunition to fight big tech companies. Both decisions followed a pattern of courts narrowly interpreting anti-competitive rules based on decades of law.

Six bills raised last week would separate businesses from Facebook, make it difficult for Big Tech to acquire smaller competitors, and undermine the power of Apple Inc.’s digital platforms, AAPL, Amazon.com Inc., AMZN and N, Google parent company Alphabet Inc., Inc., and Google .

It remains to be seen whether and in what form the bills will come into force. On Tuesday, Rep. Steny Hoyer (D., Md.), The second-tier member of the House of Representatives, warned that the extensive cartel package was “not ready to negotiate”.

“[T]Hey, these are very important pieces of legislation and I think there is broad consensus that social media antitrust law needs to be tackled and power needs to be tackled, but it needs to be constructive, not destructive, ”Hoyer told reporters.

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