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Antitrust and Unfair Competition Law E-Briefs, News and Notes: March 2025

by Sarah Van Culin

On January 24, 2025, Judge Donato granted Meta’s motion to exclude the opinions of user plaintiffs’ expert on antitrust injury. Finding that the class certification motion depended on the expert opinions offered by Dr. Economides, Judge Donato also denied user plaintiffs’ class certification motion.

Background

In Klein v. Meta, groups of Facebook users and advertisers sued Meta, alleging claims under Section 2 of the Sherman Act and California state law. The plaintiffs allege that Meta illegally acquired and maintained a monopoly through misrepresentations over data privacy and its use of user data. User plaintiffs argue that without Meta’s misrepresentations around data privacy, it would have had to compete with other social networking sites to keep users and that this competition would have taken the form of payments to users for their data. Dr. Economides offered his expert opinion in support of class certification, discussing the concepts of zero and negative pricing. He ultimately opined that in the but-for world, Meta would have paid users $5 per month for their data, resulting in $52.8 billion in damages before trebling. User plaintiffs moved to certify a class of all U.S. Facebook users who used their profile between December 2016 and December 2020.

Order on Motion to Exclude

Meta moved to exclude Dr. Economides’ opinions as to the antitrust injury suffered by the class. While recognizing Dr. Economides is “a well-qualified economist” and that the concepts of zero and negative pricing are supported by economic literature, Judge Donato ultimately held that Dr. Economides’ opinions could not make the connection from the economic literature to the factual record before the Court. Of particular importance to Judge Donato’s analysis was evidence offered by Meta to show that no other social networking service had used payments to users for their data over other options, such as improving the services they offered. While plaintiffs directed the Court to Meta’s internal discussions about the possibility of paying consumers for their data, they could not show implementation of payments in the social networking market by Meta or their competitors. Without this final link to connect the economic theory of zero and negative pricing to the factual record before the Court, Judge Donato found that Dr. Economides’ opinions failed to meet the requirements of Federal Rule of Evidence 702 and thus should be excluded.

Order on Class Certification Motion

Without Dr. Economides’ opinion on antitrust injury, Judge Donato held that plaintiffs could not meet their burden under Rule 23 to establish commonality and predominance. Plaintiffs had relied on Dr. Economides opinions to show they could prove antitrust injury on a class-wide basis; without his opinions, they could not meet that burden. Judge Donato denied class certification and directed the parties to meet and confer as to the remaining pre-trial dates.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.