Late complication tangles FTC’s decision on suing Facebook

A looming vacancy on the Federal Trade Commission has created a dilemma for the agency as it decides how to pursue its expected antitrust lawsuit against Facebook, contributing to a delay in the launch of the case. While the five commissioners had been expected to file the suit by the end of November 2020, the agency’s commissioners are now grappling with the prospect that Chairman Joseph Simons’ likely departure before the next administration could lead to 2-2 splits in future votes. That’s important because Chairman Simons favors pursuing the suit against Facebook in the FTC’s in-house court, rather than in a standard federal court. An in-house case would give the commission more control over the process, a better chance of winning, and an opportunity to write an opinion that could change legal doctrines affecting future antitrust cases. But an in-house suit would also require the commission to vote on the case’s final resolution, long after Simons’ likely departure. And with no guarantee that President-elect Joe Biden could quickly fill the vacancy, the FTC could find itself in a deadlock — possibly to Facebook’s advantage.