Meta loses bid, for now, to depose FTC over agency's challenge to Within deal

Meta loses bid, for now, to depose FTC over agency’s challenge to Within deal

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  • The judge leaves the door open to questioning on certain subjects
  • The FTC argued that the request amounted to an “interrogation” of its lawyers

(Reuters) – A California federal judge on Tuesday rejected an offer by Facebook’s parent company, Meta Platforms Inc, to depose U.S. Federal Trade Commission officials over the agency’s lawsuit seeking to prevent the social media company to buy virtual reality content maker Within Unlimited Inc.

In a court ruling, U.S. Magistrate Judge Susan van Keulen said the FTC had already provided enough information to Meta to prepare its defense against the federal agency’s antitrust lawsuit.

The FTC sued Meta in July, saying its acquisition of Within would reduce competition in the VR fitness app market. Meta denied the allegations and called the case “ill-conceived”.

Meta’s attorneys had asked van Keulen to let them question the FTC on a range of matters relating to the case, including how the agency derived the relevant market. They said the agency had “taken the extreme position of refusing to produce a representative” for a deposition.

The judge found that much of what Meta wanted to ask the agency in the depositions was protected by an attorney’s “work product” protection.

A Meta spokesperson did not immediately comment on Wednesday, and an FTC representative declined to comment.

Meta’s attorneys at Weil, Gotshal & Manges and Kellogg, Hansen, Todd, Figel & Frederick did not immediately respond to a message seeking comment.

Van Keulen’s order left open the possibility that FTC officials would be required to sit down for questioning later in the litigation, after a ruling on Meta’s request to dismiss the lawsuit. She said the FTC “is not entitled to a general protective order” that would protect the agency from testimony focused on allegations in a lawsuit.

Van Keulen deferred ruling on whether to allow Meta to file the FTC on any communications with state attorneys general and on whether FTC Chairwoman Lina Khan should be recused from participating in the challenge to the merger.

Meta lawyers have long argued that Khan should be recused from cases involving the company based on statements she made criticizing the powers of the ‘big tech’ market before her appointment by the Biden administration to lead of the FTC.

FTC attorneys said in a recent court filing that Meta’s request for a deposition from the agency was “the practical equivalent of questioning opposing counsel.”

Meta’s effort to have the FTC’s lawsuit dismissed is pending before U.S. District Judge Edward Davila in federal court in San Jose.

The case is Federal Trade Commission v. Meta Platforms Inc, US District Court for the Northern District of California, No. 5:22-cv-04325.

For the Federal Trade Commission: Abby Dennis of the FTC

For Meta: Eric Hochstadt of Weil, Gotshal & Manges; Mark Hansen of Kellogg, Hansen, Todd, Figel and Frederick

Read more:

Zuckerberg to testify in US case against Facebook’s virtual reality deal

Facebook parent calls for dismissal of US challenge to Within Unlimited deal

FTC Files Streamlined Complaint in Fight Against Meta’s Acquisition of Within

Antitrust veteran Boies Schiller moves to FTC as lead trial attorney

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