N.Y. Judge Grants FTC's Motion to Strike Iqvia, Propel Media Defenses

U.S. District Judge Edgardo Ramos for Southern New York in Manhattan granted the FTC’s motion to strike defendants Iqvia and Propel Media’ s constitutional and equitable defenses with prejudice, said his signed opinion and order Tuesday (docket 1:23-cv-06188). The FTC argued that defenses asserted by Iqvia in the antitrust case should be dismissed on grounds that several raise constitutional challenges to the FTC’s powers that are “immaterial” and “impertinent” to the “narrow inquiry” that the court must undertake pursuant to the FTC Act in evaluating a claim for a preliminary injunction. The FTC seeks to enjoin Iqvia from completing its purchase of Propel Media (see 2310120051), saying the proposed acquisition would “substantially lessen competition by combining two of the top three providers of programmatic advertising targeted specifically at U.S.-based [healthcare professionals] on a one-to-one basis.” The court agreed with the FTC that the defenses are either “legally insufficient or inadequately pled and that the FTC would be prejudiced by their inclusion.” The state of the law in the Second Circuit is “well settled” that a laches defense is not available against the government when it is protecting the public interest, “and there can be no dispute that the FTC commenced this action to protect the public interest,” said the order. Defendants' asserted that the doctrine of equitable estoppel “binds the FTC to the claims, assertions, and admissions made by the U.S. Government about the digital advertising industry” in a suit pending against Google in the Eastern District of Virginia. But Ramos said that suit alleges that under sections 1 and 2 of the Sherman Act, Google is a monopolist in digital advertising and has significant market share as a demand-side platform. Equitable estoppel may apply where “(1) the party to be estopped makes a misrepresentation of fact to the other party with reason to believe that the other party will rely on it; (2) and the other party reasonably relies upon it; (3) to her detriment,” Ramos said, citing Kosakow v. New Rochelle Radiology Associates. But it is “well established” that “the Government may not be estopped on the same terms as any other litigant,” he said, and, citing Davila v. Lang, only “’in the most serious of circumstances’ when a party has reasonably and detrimentally relied on the government’s misrepresentation, and the government has engaged in affirmative misconduct.” Defendants here “do not provide any allegations making it plausible that they can satisfy the estoppel requirements -- even before accounting for the higher standard to invoke the defense against the government,” he said. Allowing the estoppel defense to remain “would prejudice the SEC by needlessly lengthening and complicating the discovery process and trial of this matter.”