Facebook asks FTC chair to recuse herself from antitrust case

Petition takes a leaf from Amazon's playbook

Facebook has asked Federal Trade Commission (FTC) chair Lina Khan to recuse herself from the Commission's decision to refile its antitrust case against the social media giant

The FTC and 46 states had sued Facebook in December, alleging the company used monopolistic practices to extend the dominance of its social networking platform. The complaint cited activities including Facebook's purchases of Instagram and WhatsApp, along with its alleged use of anti-competitive terms and conditions with software developers. Guam and the District of Columbia also sued. 

At the end of June, a federal judge threw out the suit, arguing prosecutors failed to provide enough evidence the company holds a monopoly in the social networking market. States had also waited too long to bring their case, he added. He gave the FTC 30 days to refile the case but also suggested it would face serious challenges if it did so. The FTC has been deliberating on whether to refile.

In its petition, Facebook argued Khan has a history of public statements accusing Facebook of anti-competitive conduct. "Indeed, she has led an organization lobbying the Commission to impose particular remedies against Facebook and, more recently, commented publicly as to her personal beliefs on the merits of the very complaint filed by the Commission last December," the petition said. 

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Facebook's petition follows a similar one Amazon filed last month, which also called for Khan to recuse herself from the FTC's investigation into the e-commerce giant's practices. The investigation is separate from an antitrust lawsuit that Washington, DC filed against Amazon in May

Khan is an outspoken advocate for traditional antitrust principles, which she laid out in a 2017 Yale Law Journal article. That article, which addressed Amazon specifically, argued it might be necessary to view large tech companies like Amazon as common carriers. 

Her response to the petition will be pivotal to the decision about refiling the Facebook case, which will fall to the FTC's commissioners for a vote. Khan's vote cements a 3-2 Democrat majority on the commission. Without her, it is unlikely the vote will make it through.

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