Facebook argued in its petition that Khan
"has consistently made public statements" accusing the company of bad
conduct that constitutes a violation of antitrust law. The social media
platform said her past work has made clear Khan has already made up her mind
about Facebook's liability in the pending antitrust case, which should be
grounds for recusal.
The FTC must decide in the coming weeks
whether to file an amended complaint in its antitrust case against Facebook in
federal court after a judge dismissed its initial claims. Alternatively, the
agency could decide to try the case internally before its administrative law
judge.
Facebook's petition follows a similar move
by Amazon, which sought Khan's recusal from antitrust probes into its business
based on her past criticism of its power. Khan rose to scholarly fame after
publishing "Amazon's Antitrust Paradox" in the Yale Law Journal while
a student in 2017.
The article argued that the unique business
models of digital giants like Amazon must be assessed with a more expansive
framework for antitrust laws besides the popular consumer welfare standard,
which often leans heavily on whether prices go up or down for consumers. Khan
wrote at the time that a new framework could help understand why a platform
prioritizing growth might engage in predatory pricing.
Facebook wrote that it agrees with Amazon's
arguments for recusal in its own petition, reiterating past cases where
commissioners were recused for prejudgment. For example, in Cinderella Career
& Finishing School v. FTC, the court said a chair's refusal to recuse
himself was a denial of due process.
Amazon noted the court, in that case, had
also condemned the chair for working on an earlier case involving the same
facts he investigated while on Capitol Hill. Before her role at the FTC, Khan
worked for Democrats on the House Judiciary subcommittee on antitrust, where
she helped compile the report on Amazon, Apple, Facebook and Google that found
each holds monopoly power and made recommendations for legal reform.
Khan also previously worked as a legal
director for the Open Markets Institute, a political advocacy group that has
pushed for Congress and government agencies to better police the dominant tech
firms. Facebook noted that while she was in that role, Open Markets advocated
for the FTC to reverse its approval of Facebook's past acquisitions of
Instagram and WhatsApp. Those mergers play a prominent role in the FTC's
lawsuit against the company.
Khan responded to a question at her
confirmation hearing before the Senate about whether she would have to recuse
herself from cases involving the tech companies given her past work. She said
at the time that she did not have any financial conflicts that would be grounds
for recusal under ethics laws and that she would follow the facts where they
lead.
And there is some precedent that could back
up her case. An FTC chairman in the 1970s was initially ordered to be removed
from a rule-making inquiry into TV advertising for kids because of his past
criticism of the practices. But later, an appeals court overturned that ruling.
The chairman still ended up choosing the
withdraw himself from the matter because he said it had become a distraction
from the inquiry.
The FTC declined to comment on the petition
for recusal.