The e-commerce giant filed a petition to the FTC on Wednesday suggesting that Khan – an outspoken tech critic who has played a key role in driving antitrust scrutiny of the industry and Amazon in particular – lacks objectivity, according to a copy obtained by CNN Business.
Khan, the petition reads, “has on numerous occasions argued that Amazon is guilty of antitrust violations and should be broken up. 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.”
The FTC didn’t immediately respond to a request for comment.
Amazon’s decision to file the petition highlights the potential regulatory threat that the company now faces as momentum for tougher antitrust enforcement spreads throughout Washington. Khan is set to oversee major lawsuits at the FTC, such as the agency’s effort to break up Facebook and, potentially, Amazon’s $8.45 billion acquisition of movie studio MGM.
In 2017, Khan published an influential paper in the Yale Law Journal highlighting alleged antitrust violations by Amazon. The paper is widely credited with having jump-started a national debate about US antitrust law and whether it is sufficient to hold Big Tech platforms accountable.
Khan was also a leading member of a House investigation into the tech industry, a probe that resulted in a landmark report last summer finding that Amazon, Apple, Facebook and Google hold monopoly power and have abused it at the expense of fair competition. The report has sparked six bills in the House aimed at breaking up large tech platforms and imposing new restrictions on them.
In a statement after the petition was filed, an Amazon spokesperson said the company welcomed close scrutiny.
“However, even large companies have the right to an impartial investigation,” the spokesperson said. “Chair Khan’s body of work and public statements demonstrate that she has prejudged the outcome of matters the FTC may examine during her term and, under established law, preclude her from participating in such matters.”
The fate of Amazon’s petition likely hinges on the details of Khan’s past statements and claims, said Charlotte Slaiman, competition policy director at the consumer group Public Knowledge and a former FTC antitrust official.
Pointing out gaps in antitrust law would probably not meet the threshold for recusal, Slaiman said, but clear statements alleging that Amazon has violated US antitrust law might. Where those could create problems, Slaiman said, would be in giving the appearance of having prejudged specific future cases against Amazon.
“Saying ‘there are problems here that should be addressed’ is different than saying Amazon has violated the antitrust laws,” Slaiman said.
She added that if Khan were to recuse herself from any agency votes on Amazon-related cases, it could tip the balance of power on the commission.
The FTC is currently led by three Democrats and two Republicans; one Democratic commissioner, Rohit Chopra, has been nominated to lead the Consumer Financial Protection Bureau. His departure from the FTC would create a vacancy that, if not filled immediately, would leave the commission at a 2-2 partisan deadlock.