The petitions for the recusal of chair Lina Khan: a matter of due process or delaying the process?

Abstract

On the 30th of June 2021, Amazon filed a request to the Federal Trade Commission (FTC) to seek newly appointed Chair Lina Khan’s recusal from “any antitrust investigation, adjudication, litigation, or other proceedings in which Amazon is a subject”, arguing due process would not be respected because of her potential partiality. Two weeks later, on the 14th of July, a petition following the same objective was filed, this time, by Facebook, with notable similarities. Following their path, in November 2021, Google targeted the other agency in charge of public enforcement, the Department of Justice (DoJ). The tech giant pressed the authority, in a letter, to recuse the new Assistant Attorney General, Jonathan Kanter, for his past work in private practice representing competitors such as Microsoft or Yelp. At a turning point in the enforcement of antitrust law towards Big Tech players, especially regarding the offense of monopolization and merger enforcement, one can wonder if these petitions for recusal really are a simple matter of due process or if bigger stakes are at play, such as the future of public enforcement of American antitrust law.

Keywords

• Due process
• Impartiality
• Federal Trade Commission
• Public enforcement
• Digital platforms