On Wednesday, Amazon filed a petition demanding that Federal Trade Commission Chair Lina Khan recuse herself from any antitrust actions aimed at the tech giant, from investigation to litigation.
Even before Lina Khan's appointment to the position of FTC Chair by President Biden earlier this month, the 32-year-old legal scholar was seen as an influential progressive voice on antitrust with a focus on Big Tech. She was an architect of the U.S. House Judiciary antitrust subcommittee's report on the anticompetitive practices of digital platforms, and in 2017 she wrote a highly influential academic work titled "Amazon's Antitrust Paradox" in the Yale Law Journal.
That article argued that the dominant ideology of antitrust law—that consumer welfare, namely prices, should be the lens through which competition was understood—failed to anticipate the myriad ways in which Amazon in particular acted as a monopoly, leveraging its market power to behave anti-competitively.
Currently, the FTC under Khan is reportedly looking to investigate Amazon’s recent acquisition of MGM and is expected to start a flurry of activity.
Most of Amazon’s arguments for recusal settle on the idea that Khan would be unable to meet Amazon’s arguments in any antitrust investigation with an open mind (or at least appear to) because she already has, elsewhere in her career, considered them and dismissed them or argued they are insufficient. At one point in the petition, Amazon goes so far as to argue that the 2017 article "solidified Chair Khan's public stature as Amazon's adversary-in-chief."
Amazon points to Khan’s time at the Open Markets Institute—a think tank that was spun out of the New America Foundation after scholars raised concerns about the corrosive influence of donors like Google on research—where she served as a legal fellow then director of legal policy. Khan also worked as a fellow and later professor at Columbia Law School, where she published another academic work titled “The Separation of Platforms and Commerce” that made the case for platforms to be barred from entering lines of business that would give them unfair advantages, such as Amazon owning the same e-commerce platform it competes with third-party vendors on.
“While we have the utmost respect for FTC Chair Khan, her work for the Open Markets Institute (a longtime Amazon critic), law journal articles, and role as a chief author of the House Judiciary Committee Antitrust Subcommittee report all reflect preconceived views about the company that she has repeatedly confirmed in media interviews," Amazon spokesperson Jack Evans wrote in an emailed statement. "Amazon should be scrutinized along with all large organizations. However, even large companies have the right to an impartial investigation. Chair Khan’s body of work and public statements demonstrate that she has prejudged the outcome of matters the FTC may examine during her term and, under established law, preclude her from participating in such matters.”
Requesting that a sitting regulator who is a subject matter expert recuse themselves from investigating the very subject of their expertise is a rather bald-faced move from Amazon, which is under increasing scrutiny and regulatory pressure.
Spokespeople for the FTC were not immediately available to comment.