By Natalie DeCoste
Online shopping giant Amazon has filed a request with the Federal Trade Commission (FTC) seeking the recusal of the agency’s new Chairwoman, Lina Khan, from any antitrust investigations of the company.
Amazon’s request stems from Khan’s extensive history of criticisms of the Big Tech company.
“Given her long track record of detailed pronouncements about Amazon, and her repeated proclamations that Amazon has violated the antitrust laws, a reasonable observer would conclude that she no longer can consider the company’s antitrust defenses with an open mind. Indeed, doing so would require her to repudiate the years of writings and statements that are at the foundation of her professional career,” read part of Amazon’s 25-page motion filed with the FTC.
Amazon argued that due process of the law requires fair consideration and alleged that Khan’s background makes her prejudiced against the company. Additionally, federal ethics rules require public officials to avoid the appearance of loss of impartiality.
“Amazon respects the important role of the FTC in enforcing our nation’s antitrust laws and understands that large institutions will be, and should be, scrutinized. But due process entitles all individuals and companies to fair consideration of the merits of any investigation or adjudication by impartial Commissioners who have not—and, equally importantly, who do not appear to have—prejudged the issues against them,” wrote Amazon.
Khan is a major critic of the Big Tech companies like Amazon, Apple, Google, and Facebook. Amazon pointed to three major components of Khan’s history that make her unsuitable to lead an impartial antitrust probe into the company.
First, Amazon pointed to Khan’s time at Open Markets, a political advocacy group devoted to influencing the enforcement of antitrust laws. During her time at Open Markets Institute, Khan became a progressive leader in the movement known as “hipster antitrust.”
Next, Khan published a paper in the Yale Law Journal in 2017 which alleged antitrust violations by Amazon. This paper is credited with having jump-started the national debate about U.S. antitrust law and whether it is adequate to hold Big Tech platforms accountable.
According to Amazon, the publication of the law review article has solidified Khan’s public stature as Amazon’s “adversary-in-chief.” According to Amazon, this article, alongside her other publications, creates a record of Khan’s impartiality towards the company.
Khan also helped lead a House Judiciary antitrust probe of the tech industry, which created a massive report accusing Amazon, Apple, Facebook, and Google of abusing their dominance in various markets. Since the report’s release, House lawmakers have proposed five bills based on the report’s recommendations that aim to rein in Big Tech or, in some cases, require them to break up their businesses. This report is another issue for Amazon.
“Like Chair Khan’s prior assertions regarding Amazon, the Report uncritically accepts the (unfounded) allegations of Amazon’s antagonists on disputed factual issues… Khan has propounded against Amazon in other capacities, cover nearly every conceivable theory of liability that the FTC, under her leadership, could now investigate, prosecute, or adjudicate in any antitrust proceeding against Amazon,” read the report.
Should Amazon be successful in its efforts, Khan would be recused from all of the current antitrust investigations of Amazon, which would, in turn, tip the balance on the commission. However, it is unlikely that Amazon’s petition will succeed. Recusal petitions against FTC commissioners are rarely successful, as it is common for an FTC chair to have previously worked for nonprofit groups or as a congressional staffer.