Advertisers Thought X's Lawsuit Was Dead - DOJ and 12 States Have Other Ideas

X Corp. is getting some serious backup in its attempt to revive the antitrust lawsuit it brought over the advertiser exodus that followed Elon Musk's purchase of Twitter.

Four amicus briefs filed with the 5th Circuit on August 12 attack different parts of the district court ruling that tossed the case in March. The Justice Department and 12 states are urging reversal. The American Antitrust Institute, which is supporting neither party, says the lower court muddled two separate areas of antitrust law. George Mason University law professor John Yun went further, arguing that the court's basic premise was wrong.

X attorney James Burnham highlighted the filings Friday night, saying the company had received a "flood of support" for its appeal.

After @elonmusk bought Twitter, a bunch of advertisers engaged in an illegal group boycott of @X. The advertisers coordinated to pull billions in ad spend and reveled in the harm they caused. We sued and this week received a flood of support for our appeal---for which we are…
— James Burnham (@BurnhamDC) August 15, 2026

X sued the World Federation of Advertisers and a group of major advertisers under federal antitrust law, alleging that they coordinated through the Global Alliance for Responsible Media, or GARM, to withhold advertising from the platform after Musk bought Twitter in 2022. The defendants have denied agreeing to a boycott and maintain that advertisers made their own decisions about where to spend their money.

According to X's second amended complaint, as summarized by the DOJ, at least 18 GARM-member advertisers stopped buying advertising on Twitter in the United States or worldwide during November and December 2022. X alleges dozens more substantially cut their purchases during 2023, in many cases by more than 70 percent. The company claims the coordinated action cost it billions of dollars in advertising revenue.

Senior U.S. District Judge Jane J. Boyle dismissed the case on March 26 and threw out Shell International, Lego A/S, Nestlé S.A., and Ørsted on jurisdictional grounds. She also tossed X's case against the remaining defendants with prejudice after finding that X had not stated an antitrust injury.

DOJ's Antitrust Division is now telling the 5th Circuit that Boyle mixed up the threshold question of whether X suffered the kind of injury covered by antitrust law with the separate question of whether X can ultimately prove an antitrust violation.

The district court here improperly analyzed antitrust injury—conflating it with the merits—and unduly restricted the scope of conduct that can constitute a group boycott.

DOJ also made an important qualification: It is not telling the 5th Circuit that X has proven an illegal boycott. Its brief "expresses no view on if there is ultimately an antitrust violation." DOJ argues that the case should not have been disposed of using the legal analysis Boyle applied.

The 12-state brief aims for another part of the ruling. West Virginia, joined by Alabama, Alaska, Florida, Idaho, Indiana, Iowa, Mississippi, Nebraska, South Carolina, Tennessee, and Texas, argues that Boyle wrongly dismissed four foreign defendants for lack of personal jurisdiction. The states contend that the court imposed Fifth Amendment restrictions that the Constitution does not require and separately misread the Clayton Act provision governing service on corporate defendants.

Then there is the American Antitrust Institute. AAI expressly filed in support of neither X nor the advertisers and says it takes no position on whether dismissal was ultimately the right result. Its assessment of the way Boyle got there, however, is not exactly glowing.

"The district court dismissed X's complaint but issued an ambiguous and inscrutable ruling."

AAI said the opinion confused the question of antitrust injury with the merits of the alleged violation, calling the result a "confused and confusing opinion" that requires clarification.

Yun, a professor at George Mason University's Antonin Scalia Law School, also challenged Boyle's reasoning that X's alleged injury was deficient because the alleged boycott did not directly or indirectly involve one of X's competitors. His brief argues that competitors can violate antitrust law by collectively withholding purchases from a trading partner even when the scheme is not designed to benefit one of that partner's rivals.

"In short," Yun wrote, "the district court held that X had not pleaded an antitrust violation on the merits and, therefore, had not pleaded antitrust injury. The premise and conclusion are both incorrect."

None of those filings proves that the advertisers illegally conspired against X, and the 5th Circuit still has to decide whether the lawsuit gets another life. But a case Boyle dismissed with prejudice five months ago now has the DOJ, 12 states, a law professor, and even an antitrust organization that refuses to take X's side telling the appeals court that significant parts of the lower court's legal analysis were wrong.

For X, that's a considerably better place to be than where the case stood in March.

Editor's Note: Unelected federal judges are hijacking President Trump's agenda and insulting the will of the people.

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