Risk & Compliance

Facebook Wants FTC Chair off Antitrust Case

Lina Khan “cannot meet any standard for neutrality that would permit her to participate in any decision-making" regarding the litigation.
Matthew HellerJuly 15, 2021

In what could be a preemptive legal move, Facebook is seeking the recusal of U.S. Federal Trade Commission Chair Lina Khan from the agency’s antitrust case against the company.

Khan’s recusal is warranted, Facebook said in a court filing, because as a longtime critic of Facebook, she “cannot meet any standard for neutrality that would permit her to participate in any decision-making regarding the FTC’s pending antitrust litigation.”

Lina M. Khan

The filing came as the FTC is deciding how to proceed with the case in the wake of a judge’s decision last month granting Facebook’s motion to dismiss it. He gave the commission 30 days to file an amended complaint.

If Khan was to be recused, “there likely wouldn’t be a majority [on the five-member commission] to sue Facebook again,” The Wall Street Journal said, noting that the FTC’s two Republican commissioners voted against filing the initial complaint in December.

The recusal petition is “the latest sign that giant technology companies are favoring aggression over a conciliatory approach with Ms. Khan,” according to the Journal.

Amazon, which is under investigation by the FTC, is also seeking her recusal.

President Joe Biden nominated Khan to the FTC in March as part of his effort to revitalize the agency’s antitrust enforcement. He made her chairperson in June after her nomination was confirmed by the Senate.

The Facebook suit alleges the company violated antitrust law by buying up companies such as WhatsApp and Instagram to prevent them from challenging its market position.

In its petition, Facebook cites Khan’s work for the Open Markets Institute, a progressive antitrust advocacy group that opposed Facebook’s acquisition of nascent competitors, and on a congressional panel that recommended lawmakers take steps to rein in large online platforms.

“Chair Khan, well before becoming a commissioner, had already decided the material facts relevant to Facebook’s liability in the commission’s pending antitrust lawsuit and already reached legal conclusions that Facebook was liable under the antitrust laws,” the petition argues.

Khan has said previously that she would consult with FTC ethics officials if recusal questions arose.