UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Argued: November 16, 2023 Decided: December 10, 2024)

No. 23-763

––––––––––––––––––––––––––––––––––––

PHHHOTO INC.,

Plaintiff-Appellant,

-v.-

META PLATFORMS, INC., FKA FACEBOOK, INC.,

Defendant-Appellee,

DOES NOs. 1-7,

Defendants. * –––––––––––––––––––––––––––––––––––– Before: LIVINGSTON, Chief Judge, WESLEY, and CHIN, Circuit Judges.

This appeal requires us to decide whether a plaintiff claiming unlawful monopolization under the Sherman Act sufficiently alleged the fraudulent concealment theory of equitable tolling. Plaintiff-Appellant Phhhoto Inc.

* The Clerk of the Court is directed to amend the official caption as set forth above.

1 (“Phhhoto”) alleges that one of the world’s largest technology companies, Defendant-Appellee Meta Platforms, Inc. (“Meta”), engaged in a scheme to injure Phhhoto’s business through anticompetitive means, including the adoption of an algorithmic feed for Instagram that purportedly suppressed Phhhoto’s content on that platform. More than four years after the new algorithm was introduced, Phhhoto filed the instant action, alleging in relevant part that Meta’s shift to an algorithmic feed, in combination with certain of its earlier acts, constituted an anticompetitive course of conduct in violation of Section 2 of the Sherman Act. The United States District Court for the Eastern District of New York (Matsumoto, J.) dismissed this claim under Federal Rule of Civil Procedure 12(b)(6) after determining that it had accrued outside of the Sherman Act’s four-year statute of limitations and that equitable tolling could not save it from untimeliness. On appeal, Phhhoto argues that the amended complaint sufficiently alleges Meta’s fraudulent concealment of an anticompetitive scheme and that the district court therefore erred in dismissing the antitrust claim as time-barred. Reviewing the record de novo, we agree with Phhhoto that it adequately alleged that the Sherman Act’s four-year statute of limitations should be equitably tolled until October 25, 2017. Accordingly, we VACATE the district court’s judgment and REMAND for further proceedings.

Judge Chin dissents in a separate opinion.

FOR PLAINTIFF-APPELLANT: SCOTT MARTIN (Irving Scher, on the brief), Hausfeld LLP, New York, NY; Sarah LaFreniere, Hausfeld LLP, Washington, D.C.

(Phillip F. Cramer, Sperling & Slater, LLC, Nashville, TN; Eamon P. Kelly & Nathan A. Shev, Sperling & Slater, LLC, Chicago, IL, for Josh Davis, Christopher R. Leslie, Robert H. Lande, Peter C. Carstensen, John B. Kirkwood, Edward D. Cavanaugh, Darren Bush & Harry First, as amici curiae)

2 (Nada Djordjevic, DiCello Levitt LLP, Chicago IL; Gregory S. Asciolla, DiCello Levitt LLC, New York, NY; Robin A. van der Meulen, Scott & Scott Attorneys at Law