Klayman: This Is Further Evidence That the Social Media Companies Are Colluding to Restrain Trade
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By Bryan Koenig
Law 360
Law360 (October 29, 2018, 7:20 PM EDT) -- Google, Facebook, Twitter and Apple have said they'll be responding as one to a D.C. federal court proposed class action from a conservative legal provocateur seeking $1 billion and alleging the tech giants violated antitrust statutes and the First Amendment by censoring conservative content.

The Friday notice comes in the form of a motion asking for more time for the companies to jointly respond to the lawsuit launched in August from Freedom Watch Inc. The group is headlined and represented by estranged Judicial Watch founder Larry Klayman, a conservative legal advocate who's made a name suing liberal politicians and wants to be named a special counsel so he can investigate Bill and Hillary Clinton.

In Friday's motion, the tech companies asked for a roughly two-week extension to respond to the suit, from between Oct. 30 and Nov. 6, to Nov. 16.

"Defendants believe that additional time will facilitate the filing of a single joint motion directed to plaintiff's complaint, thereby saving resources for the court and the parties. The proposed timing of plaintiff's opposition and defendants' reply takes into consideration the upcoming holiday season," the tech companies said.

According to the filing, an attorney for the tech companies asked Klayman for his assent to the proposed schedule, which would give him until Dec. 17 to respond.

The reaction to the schedule request from Klayman's camp was ultimately negative.

"Counsel for plaintiff replied that the schedule was 'OK if y'all acknowledge service.' Relying on this response, defendants prepared a joint motion for extension of time, sent it to counsel for plaintiff on October 22, 2018 and requested consent to file," the companies said. "Counsel for plaintiff replied on October 25, 2018: 'We oppose.'"

Klayman's summer lawsuit came on the heels of one of President Donald Trump's Twitter tirades against the press, which he claims is biased "fake news" and the gravest threat to the United States because of the steady stream of unfavorable coverage following his administration. In late August, Trump cited a study from conservative media outlet PJ Media claiming that 96 percent of Google search results for the query "Trump news" come from "national left-wing media."

In the complaint, Klayman claims the tech companies agreed to illegally refuse to deal with conservative media in a "plainly anti-competitive" agreement. In addition, Freedom Watch alleged that sites like Facebook, Twitter or Google's YouTube are effectively public platforms; by "censoring its content for purely political reasons," Freedom Watch claims the companies are violating its right to free speech.

Freedom Watch relies on the PJ Media study and other articles from conservative sources like the National Review and The Western Journal to claim that Google, Facebook and the tech companies aim to "use their position of influence and great market power ... to recraft the nation into their leftist design."

As an example, the organization cited Google's decision over the summer to delete a YouTube channel belonging to conspiracy theorist Alex Jones of InfoWars, which the suit said had "more than 2 million subscribers and many years' worth of content." Apple removed InfoWars podcasts from its platform as well.

After Trump's search result tweets, Google responded in a statement to multiple news outlets, saying, "We never rank search results to manipulate political sentiment."

Klayman and counsel for the tech companies did not immediately respond to press inquiries late Monday.

In remarks about the alleged censorship that were broadcast in August on C-SPAN, Trump's chief economic adviser, Larry Kudlow, said, "We're taking a look at it, we'll let you know." There has been no sign of such scrutiny from U.S. antitrust watchdogs.

When a reporter challenged the 96 percent statistic as having originated in Russian media during the 2016 campaign and later having been discredited, Kudlow shook his head and said, "This is above my pay grade, I don't know."

Freedom Watch is represented by its Chairman and General Counsel Larry Klayman.

Google Inc. is represented by John E. Schmidtlein, Kannon K. Shanmugam and Thomas G. Hentoff of Williams & Connolly LLP.

Facebook Inc. is represented by Craig S. Primis and K. Winn Allen of Kirkland & Ellis LLP.

Twitter Inc. is represented by Jonathan M. Jacobson and Brian Willen of Wilson Sonsini Goodrich & Rosati.

Apple Inc. is represented by Michael J. Gottlieb, William A. Isaacson and James A. Kraehenbuehl of Boies Schiller & Flexner LLP.

The case is Freedom Watch Inc. v. Google Inc. et al., case number 1:18-cv-02030, in the U.S. District Court for the District of Columbia.

--Additional reporting by RJ Vogt. Editing by Orlando Lorenzo.

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