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Can Amazon block Lina Khan?
Last week, Amazon fired a pre-emptive shot at the new F.T.C. chair, Lina Khan, using a common line of attack on policymakers with an opinionated past: trying to disqualify them for alleged bias.
Khan made her name with a forceful view on Amazon and antitrust, arguing that the sprawling tech giant showed how competition law was “unequipped” for the digital age. This, among other things, disqualifies Khan from participating in F.T.C. actions against Amazon, the company said. Amazon is a subject of the F.T.C.’s inquiry into Big Tech’s acquisitions of smaller rivals, and the agency is separately reviewing its proposed purchase of MGM.
Daily Business Briefing
July 8, 2021, 12:44 p.m. ET
So, does Amazon have a chance?
Disqualifying a commissioner isn’t easy. At her Senate confirmation hearing, Khan rejected the idea of a blanket disqualification from Big Tech investigations, saying she would consider such requests on a case-by-case basis and consult with F.T.C. counsel. Simply voicing opinions critical of companies is rarely cause for recusal, and most disqualification attempts fail.
Impartial “does not mean uninformed, unthinking, or inarticulate,” explained a federal appeals court in 1980, reversing the disqualification of an F.T.C. commissioner.
In 2010, Intel’s attempt to disqualify a commissioner who had previously been its antitrust counsel failed because the F.T.C. said his previous work bore no “substantial relationship” to the review at issue.
In 2012, a prospective commissioner who had worked for Google promised senators that he’d recuse himself from Google-related cases for two years to avoid the appearance of impropriety. That is a point Amazon stressed in its motion — that the appearance of fairness matters, too.
Amazon’s filing may be “a warning shot,” said Bruce Hoffman, a partner at Cleary Gottlieb and the former director of the F.T.C.’s competition bureau. Because it isn’t attached to a case and aims to recuse Khan broadly, it essentially serves as a notice to the agency. It could be Amazon’s way of saying, “if you participate, this could haunt you,” he said.
Commissioners are chosen for their policy views, as well as their expertise, so many would be disqualified if having opinions was disqualifying, said Khan’s former colleague at Columbia, the antitrust law scholar Eleanor Fox. Asked whether Amazon’s motion would succeed in blocking Khan, she replied: “Oh, I don’t think so.”