FTC, Meta Agree on Holding Prehearing Conference but Differ on When
The FTC doesn't oppose the Nov. 7 motion for leave filed by two dozen states, plus the District of Columbia, for permission to enter an amicus brief in support of the FTC’s preliminary injunction request to block Meta’s Within Unlimited buy on antitrust grounds (see 2211080041), said the commission in a statement of nonopposition Wednesday (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. The states’ motion for leave said the FTC consented to the brief, while Meta opposed it as “purportedly untimely.”
The agency’s antitrust guidance, available at its website, says state attorneys general “can play an important role in antitrust enforcement on matters of particular concern to local businesses or consumers,” said the commission’s statement. “The FTC believes that is the case here, and thus does not oppose the States’ motion for leave to file an amicus brief,” it said. For many of the same reasons that the FTC’s motion for a preliminary injunction should be granted, Meta’s pending motion to dismiss the agency’s complaint “is meritless and should be denied,” said the states’ proposed brief.
The FTC and Meta have met and conferred to discuss the preparation and exchange of materials, and to reach agreement where possible on procedural and logistical issues, “to facilitate the efficient presentation of evidence at the preliminary injunction hearing” scheduled to begin Dec. 8, said the parties in a joint stipulation Tuesday. They agree they have specific issues about “procedures and presentation of evidence” that would benefit from the court’s guidance, and want the court to schedule a prehearing conference, it said.
But the FTC and Meta disagree on when the conference should be held, said the stipulation. The FTC thinks Meta’s request for a prehearing conference is “premature,” and asks that it be held after Nov. 28, it said. The parties have not yet had a chance “to meaningfully engage on key issues such as the admissibility of exhibits, deposition designations, or presentation of evidence at trial,” it said. The FTC also believes that many of the items Meta seeks to raise now can be resolved “through continued collaboration” without imposing on the court’s time, it said.
Deadlines abound in the time between now and Nov. 28, which is why the FTC wants the prehearing conference held after that date, which is the last of the looming deadlines, said the stipulation. Should the court grant Meta’s request for an earlier prehearing conference, the FTC asks that it be held remotely “to alleviate the burden” of traveling to San Jose “in the midst of these deadlines,” it said.
Meta’s position is that the court should schedule a prehearing conference “at its earliest availability,” said the stipulation. Doing so would enable the parties to benefit from the court’s “early guidance on matters central to the efficient presentation of evidence,” including whether the court will allow “remote testimony for certain witnesses,” it said.
Meta thinks that holding the prehearing conference “as soon as practicable” on the items surrounding the presentation of evidence “will allow the parties to efficiently allocate their limited trial time,” and “minimize disruptions and burdens” on the court during trial, said the stipulation. Holding the conference sooner rather than later also would help the FTC and Meta to “better plan for the potential testimony of company and third-party witnesses, several of whom either do not reside in California or have pre-existing travel commitments during the month of December,” it said.