Amazon seeks recusal of FTC chair Lina Khan over past criticisms

Amazon.com  wants Federal Trade Commission (FTC) chair Lina Khan recused from matters involving the company because of her history criticising the online retailer as a threat to competition.

Amazon filed a request with the agency on Wednesday, arguing that Khan should be barred from handling antitrust enforcement decisions affecting the company, according to documents obtained by Bloomberg News.

Khan “has on numerous occasions argued that Amazon is guilty of antitrust violations and should be broken up”, Amazon said in its petition. “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.”

The move comes as the FTC is reviewing Amazon’s proposed $8.45bn acquisition of movie studio Metro-Goldwyn-Mayer (MGM). The deal has been criticised by those worried about the growth of tech companies, but antitrust experts have said it will be difficult for regulators to stop.

An FTC spokesperson declined to comment.

Democratic senator Elizabeth Warren on Wednesday asked Khan to conduct a “broad and meticulous review” of the MGM deal, saying the deal could have anticompetitive effects on video streaming and broader impacts on workers and small businesses.

“The FTC should disfavour approving deals involving parties with a known pattern of inhibiting competition and harming consumers and workers,” Warren said. “Allowing such firms to continue buying up competitors would only exacerbate these abuses of market power.”

The FTC is also investigating Amazon’s online marketplace alongside attorneys-general in New York and California, and is reviewing the company’s data practices, Bloomberg has reported.

Khan rose to prominence in the antitrust world with a 2017 paper she wrote as a law student about Amazon’s dominance. Titled “Amazon’s Antitrust Paradox”, it traced how the online retailer came to control key infrastructure of the digital economy and how traditional antitrust analysis fails to consider the danger to competition posed by the company.

In its petition to the FTC, Amazon said that companies subject to investigations are entitled to fair consideration by impartial commissioners who have not appeared to have prejudged the matters before them. Federal ethics principles require recusal, Amazon argued, when a new commissioner previously has expressed views about specific factual and legal issues relating to a particular company.

Amazon cited Khan’s law school paper, and her work with anti-monopoly organisation Open Markets Institute, where she wrote articles stating Amazon has engaged in antitrust violations. The company also pointed to her role as a staff lawyer on the House judiciary committee’s antitrust panel, which put out a report in 2020 accusing Amazon and other tech platforms of abusing their market power.

“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 defences with an open mind,” Amazon said. “Indeed, doing so would require her to repudiate the years of writings and statements that are at the foundation of her professional career.”

During her Senate confirmation hearing in April, Republican senator Mike Lee asked Khan whether she should recuse herself from investigations related to Amazon, Alphabet’s Google, Apple   and Facebook given her work on the House antitrust panel. Lee cited a federal appeals court decision that said a former FTC commissioner had to recuse himself due to prior work on a Senate investigation.

Khan said she had none of the financial conflicts that are the basis for recusal under federal ethics laws.

“If it were to arise I would seek the guidance of the relevant ethics officials at the agency and proceed accordingly,” she said.

Bloomberg News. More stories like this are available on bloomberg.com