Facebook says FTC chair shouldn’t help decide the future of its antitrust case

Facebook has asked recently confirmed Federal Trade Commission chair Lina Khan to recuse herself from the agency’s antitrust fight against Facebook, claiming her previous criticism of the company disqualifies her from fairly judging its conduct.

The Wall Street Journal first reported on Facebook’s petition, which was filed with the FTC today. In the petition, Facebook attorneys write that “Chair Khan has consistently and very publicly concluded that Facebook is guilty of violating the antitrust laws. She has built her career, in large part, by singling out Facebook as a professed antitrust violator.” Facebook cites Khan’s previous anti-monopoly work at the nonprofit Open Markets Institute, her contribution to a congressional antitrust investigation, and her popular and academic writings about tech industry monopolies, as well as her tweets, which include praise for FTC antitrust enforcement against Facebook.

The petition claims that Khan has “prejudged Facebook’s alleged antitrust liability” by supporting the FTC’s earlier enforcement actions and by conducting academic and congressional investigations where she concluded Facebook had monopoly power. Khan’s opinions have been unusually high-profile, but it is not unusual for government officials to have worked in advocacy positions or expressed opinions on their subjects of expertise, and it’s rare for a confirmed appointee to be disqualified on that basis.

Facebook is following a playbook set by Amazon, which also asked Khan to recuse herself from potential Amazon proceedings. (“Facebook agrees with Amazon’s arguments concerning the circumstances where a commissioner’s prior statements require recusal and incorporates those legal arguments,” the petition notes.) But Facebook facing an even more immediate risk: last month, a judge threw out a federal antitrust lawsuit against Facebook and gave the FTC until July 29th to amend and refile it.

Khan joined the FTC shortly before the Facebook case was dismissed, and, as chair, she could play a pivotal role in deciding its future. Facebook wants Khan to refrain from “participating in any decisions concerning whether and how to continue the FTC’s antitrust case against the company.”

Recusal petitions against FTC commissioners are not commonly granted, and Khan was confirmed largely because of bipartisan support for her sharp and public criticism of tech companies. She has not indicated plans to recuse herself from cases involving Amazon — and it seems unlikely that she’ll do so with Facebook either.