• by Wendy Davis  @wendyndavis, July 29, 2021

A coalition of states led by New York will ask an appellate court in Washington, D.C. to revive an antitrust lawsuit against Facebook.

The states, which filed the appeal this week, have not yet made any substantive arguments to the D.C. Circuit Court of Appeals.

The legal battle dates to last December, when attorneys general from 46 states and the District of Columbia sued Facebook for allegedly violating anti-monopoly laws by purchasing social-media service Instagram (acquired for $1 billion in 2012) and messaging service WhatsApp (bought for $19 billion in 2014).

The states filed suit soon after Democrats on the House Judiciary committee's antitrust subcommittee issued a report stating that Facebook used its “data advantage” to identify competitors and then “acquire, copy, or kill” them.

U.S. District Court Judge James Boasberg dismissed the states' case last month, writing that they waited too long to sue.

“Facebook’s acquisitions are barred by the doctrine of laches, which precludes relief for those who sleep on their rights,” he wrote in his dismissal order.

“Although Defendant purchased Instagram in 2012 and WhatsApp in 2014, plaintiffs’ suit -- which seeks, in the main, to have Facebook divest one or both companies -- was not filed until December 2020,” Boasberg added. “The court is aware of no case, and plaintiffs provide none, where such a long delay in seeking such a consequential remedy has been countenanced in a case brought by a plaintiff other than the federal government, against which laches does not apply.”

Boasberg also dismissed a separate antitrust compliant brought by the Federal Trade Commission against Facebook, but said the agency could attempt to reformulate its allegations and bring them again. The FTC recently indicated it plans to do so by August 19.