From S&P Global:

Still, the FTC has a “tricky” case to make, according to Jeffrey Westling, a resident fellow for technology and innovation whose research includes competition policy issues at free-market policy think tank R Street Institute.

Westling thinks that the case made by the FTC regarding potential anti-competitive harms is stronger than its market power analysis. However, he also notes that, unless they are successful in showing violation of both parts of the law, they will not be able to get any remedies, outside of a settlement.

Westling also said the FTC could reach a settlement with Facebook, as the regulator sometimes ends up settling as a way to avoid risking the chance of losing in litigation.

Notably, Facebook reached a $5 billion settlement agreement with the FTC in 2019 related to violations of a 2012 order regarding the social platform’s user data practices. The fine was the largest ever imposed by the agency against a company for consumer privacy violations.

In the case of a settlement, Westling said the agency could agree to drop the pursuit of structural changes, like divestitures, if the company made concessions, such as changes to standards for interoperability.

Both Westling and Petros said they do not expect significant changes in approach to this case from the FTC under a new administration since the complaint was bipartisan and much of the work is done by career officials who have worked under both parties.

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