Newly installed Federal Trade Commission head Lina Khan should be disqualified from investigating or prosecuting antitrust actions against Amazon due to her prior advocacy against the tech company, Amazon urged in a petition filed Wednesday.
“Chair Khan has built her academic and professional career in large measure by pronouncing Amazon liable for violating the antitrust laws,” Amazon wrote in a 25-page petition filed with the FTC. “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.”
The FTC declined to comment on Amazon's petition.
Khan, a prominent critic of large tech companies, was sworn in as chair of the FTC on June 15, just hours after the Senate approved her nomination to the agency by a 69-28 vote.
The 32-year-old law professor is known as a proponent of aggressive enforcement of antitrust laws. She was among the counsel to the House Judiciary Committee’s antitrust subcommittee, which criticized large tech companies in a report issued last year. She also served as legal director at Open Markets Institute, which advocates for enforcing anti-monopoly laws.
Khan first became widely known in antitrust circles in 2017, when she authored the Yale Law Journal article “Amazon’s Antitrust Paradox,” which argued that antitrust policies should aim to preserve a “competitive process and market structure,” as opposed to focusing solely on whether a company's practices harm consumers in the short term.
Amazon now argues that her prior work and criticism of the company require her to avoid participating in investigations, litigation or adjudication of any antitrust cases against it.
“Chair Khan’s public statements over the past decade ... show that she has reached and publicly declared firm factual and legal conclusions that Amazon’s business practices are anticompetitive, that the company should be held liable for antitrust violations, and that it should be subject to extraordinary antitrust remedies,” Amazon writes.
The company adds that “reasonable observer” would probably decide that Khan's “anti-Amazon convictions are both deeply held and integral to her professional credibility.”
Amazon also says Khan should be disqualified from participating in antitrust cases involving the company in order to avoid the appearance of bias.
“The standard for recusal does not require a conclusion that Chair Khan will act unfairly toward Amazon,” the company writes. “Rather, under the objective standard for recusal, because Chair Khan’s participation ... would create at least the appearance, if not the reality, of bias and prejudgment, her recusal is required.”
Santa Clara University law professor Eric Goldman, an expert on online advertising law, questioned Amazon's decision to bring the petition.
He called the company's action “a bold move,” but added that it could be seen as a sign that Amazon is anxious about the potential risk it's facing from the government.
“I feel like anyone reading the petition would think Amazon feels threatened and is lashing out,” he says.