Facebook seeks recusal of FTC Chair Lina Khan in antitrust case

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Facebook on Wednesday filed a motion seeking FTC Chair Lina Khan's recusal from any decisions regarding how the agency should proceed in its antitrust case against the company.

"When a new Commissioner has already drawn factual and legal conclusions and deemed the target a lawbreaker, due process requires that individual to recuse herself from related matters when acting in the capacity of an FTC Commissioner," Facebook wrote in its petition to the FTC.

A recusal that could deadlock the case: The FTC alleges in its case against Facebook that the company maintains an illegal monopoly in social networking. Without Khan's vote, the case against Facebook could hit serious roadblocks, splitting the vote 2-2 between Democratic and Republican commissioners.

The argument against Khan: Facebook is arguing that Khan has already "decided the material facts relevant to Facebook’s liability in the Commission’s pending antitrust lawsuit," pointing to her previous work with the anti-monopoly think tank Open Markets Institute, her academic work about Facebook and her deep involvement with the House Judiciary Committee's investigation into Facebook, Amazon, Google and Apple.

Throughout her career, Khan has made statements indicating that she believes Facebook functions as a monopoly and should be broken up. One of her academic papers concluded that Facebook "has both foreclosed competitors from its platform and appropriated their business information and functionality” and does not face "serious competition in the social network market." And she has previously criticized the FTC's decision to sign off on Facebook's acquisition of Instagram.

Khan also applauded the FTC and state attorneys general when they filed their antitrust case against Facebook in 2020.

The case against Facebook: Facebook's filing comes several weeks after a D.C. federal judge dismissed antitrust suits by the FTC and state attorneys general seeking to break up Facebook's social networking monopoly. U.S. District Judge James Boasberg in his opinion ruled that the FTC had not made a strong enough case that Facebook controls more than 60 percent of the social networking market.

The judge gave the FTC 30 days to file a new antitrust complaint against Facebook. The agency could still file an amended complaint or bring its claims in-house through a separate process.

A pile-on from tech giants: Facebook's motion follows a petition from Amazon last month saying Khan should recuse herself from any inquiries into the company. Amazon argued then that Khan's longtime public criticism of the company creates the appearance that she has "prejudged" the outcome of any proceeding against Amazon.

What comes next: Khan will first consider whether she wants to recuse herself. Depending on her decision, the issue would then go before the FTC to review and decide, based on whether "a disinterested observer may conclude that [the commissioner] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it."

Khan previously declined to pledge to recuse herself from the agency's probes of tech giants, saying she would "seek the guidance of the relevant ethics officials at the agency and proceed accordingly.”

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