The Cedar Hill, Texas, lawyers who are representing X Corp. in an antitrust lawsuit filed Tuesday accusing a group of advertisers of conspiring to boycott buying ads on the social media site chose to bring their suit in the Wichita Falls Division of the Northern District of Texas.
Pursuant to a special order issued by Chief U.S. District Judge David Godbey in September 2022, all new cases filed in Wichita Falls are to be assigned to U.S. District Judge Reed O’Connor, making it a single-judge division.
“Forum shopping is definitely going on here,” C. Paul Rogers III, current professor and former dean at Southern Methodist University Dedman School of Law, told The Lawbook in an interview Tuesday.
And there may be another reason that venue was selected. John Sullivan of S|L Law, a former Texas assistant solicitor general who is representing X in the lawsuit filed Tuesday against the World Federation of Advertisers and others, is also representing X in another case that’s currently before Judge O’Connor: X Corp. v. Media Matters.
That business disparagement lawsuit was filed in November and is rooted in a report Media Matters published accusing X of placing advertisements from several well-known companies next to “pro-Nazi content.” Many of those companies — Apple, Comcast, NBCUniversal and IBM among them — withdrew all ads from the platform in response.
“Judge O’Connor set it for trial in January 2025, which is super fast,” said antitrust lawyer Barry Barnett, who is a partner at Susman Godfrey. “And that by itself would be a reason to bring the case in front of Judge O’Connor.”
Barnett also noted that in April, Judge O’Connor declined to stay discovery in the case while he considered Media Matters’ motion to dismiss.
“So, these same lawyers are before the same judge on behalf of the same client and they want to go fast,” Barnett said. “They want to get discovery as quickly as possible … although it’s not an antitrust case, it’s still Elon Musk angry, or upset, or unhappy, with people who haven’t treated Twitter the way he’d like it to be treated.”
As for the merits of this case, Rogers said he believed the complaint is detailed and lays out a “colorable boycott claim.” Barnett was more skeptical about the likelihood X would prevail, explaining that antitrust is a highly specialized area of the law.
“There are more ways to die in an antitrust case, and this one has some real problems with it,” he said.
A typical antitrust claim alleges competitors are conspiring against their customers. In this case, the entity that sells advertising is suing a group of advertisers.
“It’s a strange kind of conspiracy and also has this First Amendment element to it,” Barnett said. “It’s like a guy who wants to have a date with the cutest girl in high school and she’s not interested. Well, she’s just not interested, OK? She’s got a First Amendment right not to be interested.”
The defense is likely to raise two arguments early on in the case, Rogers said: that X Corp. failed to show it suffered “competitive harm in the relevant market” and that X Corp. failed to meet the heightened pleading standard to show that a conspiracy is plausible as required under Bell Atlantic v. Twombly.
In X’s lawsuit against the advertisers, it alleges the “relevant market” in this case is the entire world, which Barnett called “crazy” and “a head scratcher.”
“The relevant market is an important concept [in antitrust law],” he said. “They seem not to know what it is.”
There will likely be robust motion practice from the defense, attempting to get the case dismissed or to win on summary judgment and it could be years before the case makes it to a trial, but one factor may encourage settlement: damages in antitrust cases are automatically trebled.
Sullivan filed a separate antitrust lawsuit against the World Federation of Advertisers on Tuesday on behalf of Rumble Inc., a YouTube-type platform that bills itself as a place for “people with something to say and something to share, who believe in authentic expression, and want to control the value of their own creations.”
“We create technologies that are immune to cancel culture,” the company’s About Us page tells visitors.
That lawsuit also was assigned to Judge O’Connor.
A search of federal court records shows Judge O’Connor has presided over seven antitrust lawsuits since taking the bench in 2007, including the two filed by X and Rumble Tuesday. Observers of the court hoping to glean information about how the X lawsuit may play out based on Judge O’Connor’s history with antitrust litigation will not come away with much. Here’s the breakdown:
- Cycle Sport v. Dinli Metal Industrial Supply was filed in February 2007 and ended in January 2009 when Judge O’Connor entered a default judgment against Dinli for about $232,000.
- United States v. United Regional Health Care System was filed in February 2011 and ended in September 2011 when Judge O’Connor entered final judgment after the parties entered a consent decree.
- Watts v. Blue Cross and Blue Shield of Texas was filed in October 2012 but was transferred to the Northern District of Alabama about two months later.
- Emrit v. AT&T was filed in February 2018 and was dismissed by Judge O’Connor that same month after the pro se plaintiff failed to pay the filing fee.
- Chandler v. Phoenix Services was filed in January 2019 and ended in April 2020 when Judge O’Connor granted Phoenix a summary judgment win.
Barnett said he’s skeptical that the boycott alleged in the X antitrust lawsuit harmed competition, an essential element to an antitrust claim.
“They’re hoping the court is sympathetic to their story — that this is an example of the liberal progressive types wreaking havoc on legitimate businesses for ideological, political reasons,” he said.
“It doesn’t seem like an antitrust case but maybe it is. I guess I’ll find out.”