Judge Zombie Wendell Holmes Delivered Some First-Rate Dadsplaining in His Facebook Antitrust Decision

·4-min read
Photo credit: The Washington Post - Getty Images
Photo credit: The Washington Post - Getty Images

Remember how Aaron Sorkin used to make people on his TV shows talk about the evils of the Intertoobz? CJ and Donna on The West Wing? Virtually everyone—except poor Dev Patel of The Newsroom? Well, there’s this judge on the U.S. District Court in D.C. who seems to have adopted this writing style of mixing unbridled contempt with uninformed condescension and applied it to his day job.

Judge James E. Boasberg on Monday threw out the Federal Trade Commission’s antitrust lawsuit against Facebook. The FTC based its complaint, which it filed at the end of last year, on the acquisition by Facebook of Instagram and WhatsApp. Judge Boasberg dismissed the complaint on the grounds that the FTC had not marshaled enough evidence that Facebook had made itself a monopoly in its field.

The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims —namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services… The complaint contains nothing on that score save the naked allegation that the company has had and still has a ‘dominant share of th[at] market (in excess of 60%).

However, Boasberg did leave open the opportunity for the FTC to correct the flaws in its complaint and file an amended version of it by July 29. This is probably a longer shot than it should be, but it’s there nonetheless. For his part, Judge Boasberg enlivened his opinion with some first class Dadsplaining. It begins badly.

At the time of the last great antitrust battle in our courthouse—between the United States and Microsoft—Mark Zuckerberg was still in high school. Only after his arrival at Harvard did he launch “The Facebook” from his dorm room.

Yeah, OK, we all saw the movie, too. And, all due respect, the fact that it’s been two decades between “great antitrust battles” is nothing for the federal judiciary—or the federal government, for all that—to brag on.

Begin with Insta, as those in the know—viz., our children—refer to it. Launched in late 2010, Instagram was an innovative photo-editing and -sharing app designed for the era of smartphones with built-in cameras.

“Viz., our children”? Really? Viz this, Your Honor. This stuff must kill at Def Judges Jam. Boasberg is merely 58-years old. Why he’s writing like Zombie Wendell Holmes is beyond me.

It is almost as if the agency expects the Court to simply nod to the conventional wisdom that Facebook is a monopolist. After all, no one who hears the title of the 2010 film “The Social Network” wonders which company it is about. Yet, whatever it may mean to the public, “monopoly power” is a term of art under federal law with a precise economic meaning: the power to profitably raise prices or exclude competition in a properly defined market. To merely allege that a defendant firm has somewhere over 60% share of an unusual, nonintuitive product market—the confines of which are only somewhat fleshed out and the players within which remain almost entirely unspecified—is not enough. The FTC has therefore fallen short of its pleading burden.

Boasberg’s decision comes just as the administration was making it known that it plans to move against monopoly power in as many ways as it can find to do so. From Politico:

The order, which could be issued as soon as this week, fits in with a growing theme for President Joe Biden, who has elated progressives by appointing advocates of tougher antitrust enforcement to top jobs at the White House and agencies such as the Federal Trade Commission.It would also mark a big shift in the government’s approach to the concerns about monopolies that have swelled during the 21st century: No longer content to just enforce antitrust laws, the Biden administration would use federal power to actively spark competition in a vast array of businesses.

The country has needed a good antitrust cleansing of the stables for a while now. (Twenty years between major antitrust cases is too damn long.) For a while, before they confronted the terrible threat of Critical Race Theory, last seen throwing something off the Tallahatchie Bridge, the Republicans actually made a lame head fake at being concerned about this issue in order to pretend that their “populism: didn’t entirely involve border walls and tax cuts. This looks like the administration’s attempt to pre-empt another conservative populist puppet show. Now, Your Honor, please tell me again what the kids call this “Instagram” thing

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