Facebook calls for disqualification of FTC President Lina Khan in antitrust case

“Where a new commissioner has already made factual and legal findings and has deemed the target to be an offender, due process requires that person to recuse himself,” Facebook said in the petition.

An FTC spokeswoman did not immediately respond to a request for comment. Ms Khan has previously said she will consult with FTC ethics officials if questions of recusal arise.

Facebook’s request comes two weeks after a similar challenge request was filed by Amazon.com Inc.,

which is the subject of multiple FTC investigations, and is the latest sign that giant tech companies prefer aggression to a dovish approach with Ms Khan, who has built her career advocating for bold antitrust action to curb actors dominants of Silicon Valley.

President Biden installed Ms Khan as head of the FTC last month, as part of a growing administration effort to curb corporate power.

The FTC is soon to decide whether or not to file a new antitrust lawsuit against Facebook after a judge dismissed the FTC’s previous complaint as legally insufficient. Due to the approaching deadlines in the case – the judge’s ruling on June 28 gave the FTC 30 days to file an amended complaint – this could force Ms Khan to face the issue of the recusal within a deadline. accelerated.

Ms. Khan has been a prolific writer on antitrust issues, particularly with regard to large tech companies. She previously worked for a progressive antitrust advocacy group and was a key member of a congressional antitrust panel that conducted a 16-month investigation into major online platforms and last year recommended lawmakers take action on them. brake.

The FTC’s vote on a Facebook retrial is likely to be split. Democrats hold a 3-2 committee majority; if Ms Khan stepped down, there would likely be no majority to sue Facebook again. The committee’s two Republican commissioners voted against the FTC’s first lawsuit against Facebook in December.

The FTC, along with 46 states, had alleged that Facebook was engaging in illegal monopolization, including buying out other companies such as WhatsApp and Instagram to prevent them from challenging Facebook’s position in the market. The company denied the claims, saying it was competitive and had been successful because its services were popular with consumers.

In last month’s ruling, U.S. District Judge James Boasberg in Washington dismissed the FTC’s case early in pre-trial proceedings, saying the FTC did not make enough claims to substantiate monopolization claims. against Facebook. He also said the FTC had no valid challenge to Facebook’s policy of denying interoperability permissions to competing apps. The judge gave the commission 30 days to file a new lawsuit that attempts to make more detailed allegations.

Under the legal standards applicable to disqualification, a company requesting the disqualification of a commissioner on the basis of prejudice must demonstrate that a disinterested observer could conclude that the commissioner had already judged both the facts and the law before a trial. procedure.

Ms. Khan decides how to respond to Facebook’s request for disqualification first. Past practice of the FTC shows that, at least in certain circumstances, the full commission can intervene.

Disqualification requests have not seen much success in modern times, but there are older court decisions that overturned FTC enforcement actions on the grounds that a commissioner should have been disqualified.

Write to Brent Kendall at [email protected]