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Ten Facts About FTC’s Lina Khan

Posted  August 18, 2021
By Allison F. Sheedy

Lina Khan was making antitrust news even before President Biden nominated her to be a Commissioner of the Federal Trade Commission in March of 2021, which was followed by his appointment of Kahn to be the Chairperson of the FTC in June.  Here are 10 facts about Kahn that may offer some clues to the news she is likely to make as she strives to accomplish her goal of reinvigorating the FTC.

  1. At the age of 32, Khan is the youngest ever chairperson of the FTC, and its sixth female chair since Congress created the agency as a guardian of antitrust and consumer protection laws in 1914.
  2. While attending Yale Law School, Khan authored what quickly became a famous student note entitled Amazon’s Antitrust Paradox, which theorized ways to use existing but often moribund antitrust laws to challenge Big Tech firms.
  3. Khan’s writings suggest that she may try to reinvigorate the Robinson-Patman Act, the anti-price discrimination law that the FTC has not seriously enforced since the 1970s.
  4. Prior to joining the FTC, Khan, who received her J.D. in 2017, worked at the Open Markets Institute, a think tank investigating corporate monopolies, and has been an associate professor at Columbia Law School.
  5. In 2020, Khan helped write the House Judiciary Committees bi-partisan report on its Antitrust Subcommittee’s Antitrust Investigation of Competition in Digital Markets. She also helped prepare lawmakers for congressional hearings that included the testimony of the CEOs of Amazon, Apple, Facebook and Google.
  6. President Biden did not reveal that he was planning on appointing Khan as FTC Chairperson until after the Senate had confirmed her as a Commissioner, which struck some observers as controversial.
  7. Khan has given indications that she intends to extend the powers and authority of the FTC, including by reinterpreting existing law. As one example, Khan led the recent rescission of the agency’s 2015 antitrust policy statement on Section 5 of the FTC Act, which had sought to anchor the FTC’s otherwise broad statutory authority to the Sherman and Clayton Acts.  This new interpretation is intended to expand the FTC’s enforcement framework to other “methods of unfair competition” outside of the Sherman and Clayton Acts.
  8. As part of a streamlined rule-making process approved by a majority of the FTC Commissioners in July, Khan has taken over the role that FTC administrative law judges previously played as the presiding officers in agency rulemakings. The majority in favor of the change argue that it removes unnecessary red tape, whereas critics argue it eliminates any independence in the process and opens the door for politically motivated outcomes.
  9. Since her appointment, Khan has been accused of bias against Big Tech, including in efforts by both Amazon and Facebook to have her recused from any investigation or other proceeding involving those companies.
  10. While Khan’s antitrust scholarship has received much attention, a significant amount of her non-academic legal experience has been in consumer protection (including as a summer associate at the Consumer Financial Protection bureau and as a legal fellow for Commissioner Chopra), which actually accounts for a majority of FTC enforcement activity. This interest in consumer protection can be expected to continue.  For example, Khan has vowed to commit significant resources to combatting fraud by digital platforms.

Edited by Gary J. Malone