Amazon seeks to force FTC chair Lina Khan to step aside from investigations

Amazon is seeking to force Lina Khan, the new chair of the US Federal Trade Commission, to recuse herself from any investigations involving the company, citing her previous work and criticism of the ecommerce giant.

In a petition filed with the regulator on Wednesday, Amazon said Khan had “already made up her mind” that the company was a threat to competition, having built her “academic and professional career in large measure by pronouncing Amazon liable for violating the antitrust laws”.

A spokeswoman for the FTC said the agency had no comment.

Khan was appointed as FTC chair by Joe Biden earlier this month following her confirmation as commissioner, underlining the administration’s intent to act aggressively against the dominance of Big Tech.

She rose to prominence following the 2017 publication of her Yale Law Review paper, the Amazon Antitrust Paradox, which took aim at the company’s role as both logistics provider and competitor to the sellers on Amazon.com.

“These statements convey to any reasonable observer the clear impression that she has already made up her mind about many material facts relevant to Amazon’s antitrust culpability as well as about the ultimate issue of culpability itself,” according to the filing, seen by the Financial Times.

It’s worth a try but it seems like a pretty unlikely event

Khan also served as counsel to the House of Representatives judiciary committee during its antitrust investigation into technology companies.

During Khan’s Senate confirmation hearing in April, Mike Lee, a Republican senator from Utah, raised the issue of impartiality and Big Tech, citing a 1966 court decision to disqualify then-FTC chair Paul Rand Dixon from a case due to his earlier work with a House subcommittee.

“Let me say up front, I have none of the financial conflicts or personal ties that are the basis for recusal under federal ethics laws,” Khan said in response. “I would be approaching these issues with an eye to the underlying facts.”

Democratic congressman David Cicilline, who chairs the House antitrust subcommittee, said of Amazon’s recusal effort on Wednesday: “This is the problem when a company has this enormous economic and political power. It is a level of arrogance that is hard to really appreciate.”

Amazon said Khan’s previous work would deprive the company of a fair process in current and future investigations, which is expected to include an examination of Amazon’s recent $8.45bn deal to acquire the movie studio MGM.

The company said in a statement: “Amazon should be scrutinised along with all large organisations. However, even large companies have the right to an impartial investigation.”

Attached to Amazon’s filing was a declaration from Thomas Morgan, an antitrust professor at George Washington University, who wrote that “it would be appropriate for chair Khan to announce that she will recuse herself in all cases against Amazon that consider factual issues she purports to have determined in her academic articles, her public advocacy publications, or the [House] majority staff report”. 

“If she does not recuse herself voluntarily, in my opinion it would be appropriate for her fellow commissioners to direct her to do so,” he said.

However, other antitrust experts suggested Amazon’s effort was likely to be a non-starter.

“It’s worth a try but it seems like a pretty unlikely event,” said Chris Sagers, professor of law at the Cleveland-Marshall College of Law.

Government and agency ethics panels would have “examined these issues for Khan extensively when she was nominated”, said William Kovacic, a former FTC chair.

Additional reporting by Kiran Stacey in Washington

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