Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC and FTC Chair Ferguson file response brief in NewsGuard appeal, (Aug 12, 2026)

By Justin Marcus Smith, J.D.

The FTC focused on whether NewsGuard showed any “nonspeculative” irreparable harm.

The FTC and FTC Chair Andrew N. Ferguson have filed a response brief in the appeal of denial of injunctive relief in the NewsGuard Technologies’ lawsuit against the FTC. The response brief argued that the district court holding of no irreparable harm was “eminently correct” in connection with an FTC civil investigative demand (CID) because the FTC withdrew the CID. The FTC noted that NewsGuard accordingly focused its arguments on the FTC consent order with Omnicom-IPG, yet failed to show that the consent order caused any “nonspeculative” harm (NewsGuard Technologies v. FTC, No. 26-5138 (D.C. Cir. Aug. 10, 2026)).

Background. In February 2026, NewsGuard Technologies, Inc., a news reliability ratings provider, filed a complaint against the FTC in the federal district court in the District of Columbia alleging that the FTC used the Commission’s regulatory powers to attack and punish a private organization in order to impose agency views. In 2025, the FTC had sent NewsGuard a civil investigative demand (CID) for all documents that NewsGuard has created or received since its founding in 2018, and entered into a consent order with Omnicom Group, Inc. and The Interpublic Group of Companies, Inc. (IPG), which NewsGuard said effectively prohibited Omnicom from using NewsGuard services. NewsGuard sought declaratory and injunctive relief for violations of the First and Fourth Amendments.

In June 2026, after the district court denied preliminary injunctive relief on April 22, NewsGuard sought an expedited appeal at the D.C. Circuit. NewsGuard’s appeal brief presented a focused question about the irreparable harm standard in First Amendment cases involving alleged government retaliation against a private journalistic organization.

Irreparable harm. The FTC response brief mainly challenged whether NewsGuard had any irreparable harm. The FTC said NewsGuard was incorrect in asserting a presumption of irreparable harm because no such presumption attaches to economic regulations that indirectly burden the speech of third parties. In the FTC view, a presumption of irreparable harm would only attach if NewsGuard could show that the Omnicom consent order directly restricted its speech, but the consent order did not do that.

The FTC continued that the consent order did not mention NewsGuard, and “NewsGuard did not submit a comment on the proposed agreement.” The FTC maintained the restrictions of the consent order were “necessary” to address competitive harm, whereas the harms NewsGuard identified were “wholly speculative and insufficient to demonstrate irreparable harm.” First, the FTC said NewsGuard did not present any evidence that an unnamed customer that did not renew its contract with NewsGuard would have made a different decision were the FTC not enforcing the Omnicom consent order. Second, the FTC said NewsGuard offered no evidence that its contract with IPG would have been renewed but for the Omnicom order. According to the FTC, Omnicom, which acquired IPG, did not have a contract with NewsGuard, and the alleged cancellation of another contract was not in the record below.

Other factors. The FTC added that the D.C. Circuit could affirm the district court decision based on the other usual preliminary injunction factors the district court did not consider, like a lack of likely success on the merits. In the FTC view, CID claims became moot on FTC withdrawal of the CID.

Threshold considerations. FTC contended the consent-order claims “fare no better.” Specifically, the FTC argued the consent-order claims should “fail at the threshold” because NewsGuard challenged an FTC agency order in district court, rather than the court of appeals; NewsGuard is a third party, not a party subject to the order; and, NewsGuard did not bring its suit within 60 days, it did so over four months later. The FTC said all of three of these circumstances contravened Federal Trade Commission Act appeal procedure.

Retaliation. The FTC continued that NewsGuard accusations of retaliation were “meritless” because the consent order was “motivated by antitrust concerns about excessive concentration in the advertising industry.” Moreover, NewsGuard ostensibly mischaracterized FTC Chair Ferguson’s criticism of heavy-handed government tactics into an endorsement of such tactics.

Later in the FTC response brief, the FTC elaborated that it had already explained that it had “ample nonretaliatory explanations” for issuing the CID as part of a “wide-ranging, high-priority investigation into collusion and boycotts in the advertising industry.” The FTC contended NewsGuard did not allege any change in its speech resulting from the CID.

The Case is No. 26-5138.

Judge: Friedrich, D.

Attorneys: Robert Lawrence Corn-Revere (Foundation for Individual Rights and Expression) for NewsGuard Technologies. Ethan D. Beck for the FTC.

Companies: NewsGuard Technologies

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