The Federal Trade Commission filed a new antitrust complaint against Facebook, rebooting the high-stakes case after a federal judge tossed the agency’s original complaint against the social network in June.
Progressive FTC Chair Lina Khan joined with her two Democratic colleagues in a 3-2 party-line vote Wednesday to file the new complaint. The agency’s two Republicans — who both opposed the suit when it was first filed in December — voted against the new bid.
The agency announced the vote and filed the new complaint Thursday.
Facebook had sought to block Khan from participating in its case, citing her past statements and work on tech antitrust issues. But in a statement, the FTC chair said the agency has determined that she doesn’t have a conflict of interest that would require her recusal.
The original case: The FTC first sued Facebook in December, alleging that the social network had illegally cemented its dominance by engaging in a strategy of buying up potential rivals, including the photo-sharing app Instagram and messaging service WhatsApp. For those it couldn’t buy out, Facebook took other steps such as selectively cutting off rivals’ access to its data and users.
The suit seeks to break up Facebook by forcing it to sell off Instagram and WhatsApp, in what would be the United States’ first court-ordered breakup of a company on antitrust grounds since AT&T in the early 1980s.
But Facebook scored a surprising court victory in June, when U.S. District Judge James Boasberg dismissed the FTC’s complaint, saying prosecutors didn’t offer enough evidence for its assertion that the company controls more than 60 percent of the market for social networking.
The judge also threw out a parallel suit by 48 attorneys general representing states and U.S. territories. He found that they had waited too long to challenge the 2012 Instagram and 2014 WhatsApp deals. The states are appealing that decision.
Boasberg gave the FTC until Aug. 19 to file a new complaint addressing his concerns.
Recusal: In the meantime, Facebook sought Khan’s recusal from the case. The company argued that Khan’s public statements and her work on a 2020 antitrust probe by the House Judiciary Committee into competition in online markets showed she had “prejudged” the case. Amazon, which is under an FTC antitrust probe, has filed a similar petition.
The FTC said in a statement that the general counsel's office determined that Khan's recusal wasn't necessary. “As the case will be prosecuted before a federal judge, the appropriate constitutional due process protections will be provided to the company,” the agency said in a release.
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