For the lawyers representing social media giant Meta in its antitrust battle with the Federal Trade Commission, this is about as bet-the-company a case as it gets. A primer in United States Antitrust Law.
Earlier this week, trial began in FTC v. Meta Platforms, Inc. in the U.S. District Court for the District of Columbia. Five years in the making, the suit hinges on whether the Facebook owner acquired competitors in an illegal effort to maintain a social media monopoly. If Meta loses, the FTC proposes forcing the $1.4 trillion company to divest its Instagram and WhatsApp platforms to spur greater social media industry competition.
Meta is relying on a trial team from Kellogg, Hansen, Todd, Figel & Frederick, a 90-lawyer Washington, D.C.-based litigation firm and a longtime Facebook outside counsel.
Kellogg Hansen name partner and antitrust litigation veteran Mark Hansen is serving as lead counsel for Meta. In his opening statement on Monday, Hansen dismissed the government’s claims as a “grab bag of FTC theories at war with fact and at war with the law.”
Whether the court will agree after the expected 12-day trial remains to be seen. One thing is clear, however: the antitrust bar is watching the case closely for indicators of the Trump administration’s appetite for pursuing anticompetition claims—particularly against major technology companies.
A Focus on Big Tech
It’s still possible President Trump will personally intervene in the case and force the FTC to settle with Meta. On the campaign trail, Trump hurled invective at the company and its co-founder Mark Zuckerberg. But in recent months, Zuckerberg has personally lobbied Trump to settle the case and has stepped up efforts to ingratiate himself with the president and administration officials, including publicly praising Trump, donating $1 million to Trump’s inaugural committee, and agreeing to pay $25 million to settle a lawsuit over Trump’s suspension from the company’s social platforms.
Yet Zuckerberg was forced to take the stand this week, and while Trump remains a wildcard, the FTC’s decision to continue the Meta case may be a bellwether of big tech-related actions to come. At a conference earlier this month, Trump’s newly appointed FTC chairman, Andrew Ferguson, said “ensuring the market power wielded by big tech firms does not inflict injuries on ordinary Americans” would be a priority for the FTC, as would efforts to curtail potential monopolies.
To underline the point, the DOJ’s Antitrust Division also hosted a Big Tech Censorship Forum on April 3, featuring Ferguson, as well as the division’s head, Assistant Attorney General Gail Slater, and Federal Communications Commission Chairman Brendan Carr. They again made it clear that the administration is focused on monopolization and the consolidation of power in big tech companies. “When you look back at the sweep of history there has never been a point in time when there have been so few entities that have so much control over the free flow of information,” Carr asserted.
Where Enforcement May Thrive
While large technology players may face stepped-up enforcement, the administration has said it intends to be more open than the Biden administration to potential anti-competition remedies offered by merging companies. The Biden FTC and DOJ were seen as more willing to file suit over mergers than previous administrations. Under Trump, however, both agencies have signaled they are open to a more cooperative approach.
Nonetheless, Trump regulators appear unlikely to scrap the Biden administration-authored Merger Review Guidelines, which have increased antitrust scrutiny of mergers. Nor do they appear to be abandoning recently revised and more expansive Hart-Scott-Rodino Filing Rules, which require companies involved in a transaction to disclose information to the government to launch a merger review.
Whatever happens with the federal government, companies may still face aggressive antitrust enforcement efforts from the states and international regulators. Earlier this month, at the spring meeting of the Antitrust Section of the American Bar Association—an event billed as the largest gathering of antitrust lawyers and regulators in the world—regulators and attorneys general from several states said antitrust enforcement will be a priority for the foreseeable future. They said they hope to develop a body of case law that focuses on state-level regulation that is distinct from federal precedents.
The European Union, too, is likely to pursue a tougher enforcement stance, especially in the wake of recent courtroom victories. This includes a 2023 win by German regulators against Meta, which found that the company had violated the EU General Data Protection Regulation in a way that constituted anticompetitive conduct.
Meanwhile, former employees keep up their pressure campaign on Meta as well. Meta whistleblower Sarah Wynn-Williams testified to U.S. senators on April 10 that Meta cooperated closely with the Chinese government to censor social media posts on its platforms, as CBS reported. Meta denies Wynn-Williams' testimony.
Company v. Company Actions
Private companies may also get into the act. If the Trump administration pursues a less aggressive enforcement stance, competitors may feel compelled to file their own antitrust claims.
Take a case filed last week by Swiss generic drug manufacturer Sandoz. The company alleges pharmaceutical maker Amgen blocked competition of a blockbuster anti-inflammatory drug. Sandoz contends that Amgen bought and used patents to create a monopoly and block competition from competitors that made cheaper, generic versions of the medicine.
But a flurry of new antitrust suits by private companies would buck recent litigation trends. Private antitrust litigation has declined sharply. During the first three years of the Biden presidency alone, civil antitrust suits brought by private companies decreased by 60 percent, according to figures from the Administrative Office of the U.S. Courts. Although other factors, such as the cost and unpredictability of litigation, contributed to the decrease, heightened antitrust enforcement undoubtedly played a key role.
‘Buy and Bury’ Strategy
Meanwhile, the Meta case is just the first of two major federal antitrust actions slated this month. On April 21, the DOJ is set to argue that Google should be forced to sell its Chrome browser to help curb the size and scope of its monopoly in search. Both cases originated in the first Trump term and were continued by the Biden administration, which also filed antitrust claims against Amazon and Apple, and another case against Google.
In the Meta case, the government argues that the company’s purchases of Instagram in 2012 and WhatsApp in 2014 were part of a “buy or bury” strategy designed to eliminate potential competitive threats by acquiring them or using its vast resources to put them out of business. The government cites, for example, a 2012 internal e-mail written by Zuckerberg that says buying Instagram would “neutralize a potential competitor.”
Daniel Matheson, the lawyer leading the FTC’s case against Meta, said in court this week that the company has “reaped massive economic profits” thanks to its anticompetitive activities. He added that the agency would be relying on “contemporaneous records” such as Zuckerberg’s e-mails rather than “self-interested executives and paid experts.”
Hansen, Meta’s lawyer, spent much of his opening statement on Monday offering, as Business Insider described it, a “boisterous defense” of the company and “mixing in animated graphics and colorful asides to undermine the U.S. government's…case.”
Working for Meta
Kellogg Hansen has represented Meta (and, prior to that, Facebook) in previous antitrust cases—including an earlier incarnation of the current fight over “buy or bury” strategy.
In 2020, on the same day the FTC filed its suit, 48 attorneys general from U.S. states and territories sued over the company’s purchase of Instagram and WhatsApp. U.S. District Judge James Boasberg, the same judge hearing the current Meta case, said the states had waited too long to file. He also tossed the FTC’s case, but later allowed it to move forward after the agency amended its complaint.
The states tried to revive their case, as well. In 2023, Kellogg lawyers, including Hansen, beat back their effort at the U.S. Court of Appeals for the D.C. Circuit.
The firm also helped Meta win the 2023 dismissal of an antitrust lawsuit brought by Phhhoto, a company that had produced a photo software application. The company claimed Facebook had driven it out of business because it was an “innovative, nascent competitor,” according to court documents.
Also in 2023, the firm defeated an attempt by the FTC to preliminarily enjoin Meta’s acquisition of Within Unlimited, Inc. And in 2014, Kellogg Hansen served as co-lead trial counsel defending Facebook against antitrust claims brought by a social games company, a case which settled shortly before trial.
A Long Track Record
Kellogg Hansen was founded in 1993 by Hansen and fellow Harvard Law School classmates Michael Kellogg and Peter Huber. Among the firm’s alums is Supreme Court Justice Neil Gorsuch, who worked at the firm for 10 years as an associate and partner. Best Law Firms has ranked the firm across multiple national and regional practice areas, including antitrust law, antitrust litigation, and bet-the-company litigation.
Even before Facebook and Meta, the firm has tallied a long track record of handling complex antitrust battles. It also has experience as counsel on both sides of the litigation table. In 2003, the firm helped plaintiff Conwood Co., a smokeless tobacco company, to collect a $1.3 billion judgment in an antitrust case against U.S. Tobacco Co. And in 2013, Kellogg Hansen served as co-lead counsel in a class action alleging price fixing by the Dow Chemical Co., in which a jury returned a $1.2 billion verdict. The verdict—upheld on appeal—is one of the largest ever in an antitrust case.
“It is no exaggeration that the firm’s cases have reshaped the substantive and procedural law of antitrust over the last two decades,” the firm says on its website.
Meta is clearly hoping the firm’s magic touch with antitrust cases continues.
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David L. Brown is a legal affairs writer and consultant who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms, as a senior content consultant.
