Amazon has petitioned that the newly minted Chair of the FTC and implacable critic of the company, Lina Khan, be recused from decisions relating to the company. The company argues that she has been too outspoken about the failure to regulate Amazon to handle matters impartially.
It will be for the FTC to decide, and its oversight committee to supervise, whether Khan will recuse herself; an agency spokesperson declined to comment on the matter.
Amazon’s argument (which you can read below) is that Khan has simply gone too far in her criticism of Amazon prior to her confirmation at the FTC, creating an effective “prejudgment” that precludes her ability to consider cases relating to the company objectively.
Although Amazon profoundly disagrees with Chair Khan’s conclusions about the company, it does not dispute her right to have spoken provocatively and at great length about it in her prior roles. But 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.
But it’s equally plain to “a reasonable observer” that Amazon, one of the largest and most powerful companies in the world, is a natural target for analysis by an expert whose professional opinion is that antitrust regulation is inadequate and dated.
And it was arguably this very idea that set her on the path to her nomination and sudden ascendance to Chair. Her “Amazon’s Antitrust Paradox” paper was not the manifestation of a vendetta against the online services giant — it was an indictment of the aging antitrust doctrine that permitted what she argued amounted to legalized monopolistic behavior.
Amazon may have been the one in the crosshairs, but it was only a stand-in for an entire school of regulatory thought that, Khan has persuasively argued in numerous papers and articles, mindlessly pursued a narrow definition of consumer harms and benefits. There are other ways that a company might act against consumer interests, such as crushing competition in a market by subsidizing costs through dominance of another market — something Amazon has made core to its entire business model.
Furthermore, the position of Chair at the FTC is one of leadership and priority setting, not utter impartiality. The impartiality comes in the form of legal arguments that show a company has, for example, broken the law. Long-held opinions count for nothing with a judge, including Khan’s own public and professionally expressed opinions; should she lead the agency in an effort against Amazon, she will have to support her interpretation of the law with facts and systematic argument.
While one can only speculate at the administration’s true reasoning for its rapid elevation of Khan, it’s hard to imagine that it’s anything but a whole-hearted endorsement of the philosophy and change she advocates.
Khan’s expertise and perspective on antitrust have made Amazon a natural antagonist, not because Khan is a monomaniacal crusader, but because Amazon could very well represent one of the largest regulatory failures in history. To point that out is not grounds for recusal — it may however be grounds for making history.
You can read the full Amazon petition below:
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