Amazon to FTC: Don’t let our “adversary-in-chief” Lina Khan investigate us

By Robert Scammell

Amazon has filed a request with the Federal Trade Commission (FTC) seeking the recusal of its new chair and Big Tech critic Lina Khan from all future antitrust investigations into the ecommerce behemoth, just weeks after her appointment.

In a 25-page motion filed with the FTC on Wednesday, Amazon said Khan’s previous criticisms of the company meant “a reasonable observer would conclude that she no longer can consider the company’s antitrust defences with an open mind”.

Amazon, describing Khan as its “adversary-in-chief”, went on to list comments made by the former academic and lawyer that it deemed to prejudice her in future investigations.

Among them was Khan’s Amazon’s Antitrust Paradox, a paper published for the Yale Law Review in 2017 in which she argued that evaluating antitrust complaints based solely on the harm to consumers – essentially prices – was no longer fit for the modern economy.

Amazon, she wrote, benefits from both owning the marketplace and selling on it because it could access third-party seller information to gain a competitive advantage.

The European Commission opened an antitrust case against Amazon on these grounds in November 2020.

Amazon’s other gripes with Khan include her allegations of “predatory pricing” for selling e-books at a loss to “solidify a monopoly in the e-reader market with its Kindle”.

Khan made a similar allegation with Amazon’s acquisition of Quidsi and subsidiary Diapers.com in 2011, arguing that it charged “below-cost” at a loss then raised prices once it had acquired its rival.

Khan has previously described Amazon as having “monopoly power” in some areas and called for it to be broken up.

The $2tn company also highlighted Khan’s work as counsel for House Antitrust Investigation and Report, which included allegations of unlawful anticompetitive conduct by Amazon, along with her work for antitrust advocacy group Open Markets.

Amazon believes these previous comments means Khan should be recused from “any antitrust investigation, adjudication, litigation or other proceeding” against it.

In other words, Amazon does not want the US’ top antitrust investigator to investigate it in any form – ad infinitum – because she has previously been critical of it.

“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,” Amazon said in its document, which was first reported by the Wall Street Journal.

Amazon unlikely to have Lina Khan recused

Khan was made FTC commissioner earlier this month and promptly appointed chair after being nominated by President Joe Biden. At 32, she is the youngest to take the role, one that will see her steer the direction of the FTC and vote along with four commissioners on enforcement matters.

Amazon said in its filing that courts have “consistently” backed recusal if an FTC commissioner has previously “appeared to have prejudged the facts” or come to a legal opinion on a company.

However, experts say there is little to support this claim and that it is unlikely the challenge will be successful.

Laura Petrone, senior analyst on the thematic research team at GlobalData, told Verdict that Amazon’s petition looks like “grandstanding”.

She added that it “remains to be seen” whether the petition will be successful, but that might not be Amazon’s primary goal.

“There’s a chance the petition might become a distraction to the main topic here – which is Amazon’s alleged anticompetitive practices,” Petrone said.

Verdict has contacted the FTC and Amazon for comment.

Amazon’s petition comes as the FTC has received the green light to investigate Amazon’s $8.45bn acquisition of US media company MGM.

There is also a wider movement among US politicians to rein in Big Tech companies such as Amazon, Google, Facebook and Apple. Earlier this month the House of Representatives introduced five bills with bipartisan support aimed at curtailing the power of tech giants.

However, a US judge’s recent dismissal of an FTC antitrust case against Facebook shows that the courts remain a check on the commission’s power.