{"id":1585,"date":"2023-10-16T12:44:12","date_gmt":"2023-10-16T12:44:12","guid":{"rendered":"https:\/\/connectwithfund.com\/business\/lina-khans-rise-was-heralded-as-an-antitrust-revolution-now-she-has-to-pull-it-off\/"},"modified":"2023-10-16T12:44:13","modified_gmt":"2023-10-16T12:44:13","slug":"lina-khans-rise-was-heralded-as-an-antitrust-revolution-now-she-has-to-pull-it-off","status":"publish","type":"post","link":"https:\/\/connectwithfund.com\/?p=1585","title":{"rendered":"Lina Khan\u2019s rise was heralded as an antitrust revolution. Now she has to pull it off"},"content":{"rendered":"
\n

\n When the Federal Trade Commission and 17 states sued Amazon last month in a landmark antitrust case, Lina Khan, chair of the FTC, described it as a \u201ccutting-edge\u201d lawsuit that captures \u201cstate-of-the-art thinking\u201d about modern monopolies in the tech industry.\n <\/p>\n

\n The closely watched case may be the biggest of the 34-year-old\u2019s career. It symbolizes the toughest regulatory challenge Amazon has faced in recent memory; for Khan, however, it is also the culmination of a years-long effort to challenge decades of received wisdom about how governments can protect competition, particularly in the tech sector.\n <\/p>\n

\n If the Khan-spearheaded suit succeeds, it could mean huge changes for Amazon\u2019s sprawling e-commerce business. But perhaps even more meaningfully, it could become an important step toward Khan\u2019s larger goal: To broaden the scope of antitrust law and to encourage regulators and courts to apply it more creatively in shaping the entire global economy.\n <\/p>\n

\n The Amazon suit isn\u2019t Khan\u2019s only effort to rein in Big Tech. Other ongoing suits have targeted industry giants including Microsoft and Meta, the latter on multiple fronts. It\u2019s a huge gamble, spending gobs of taxpayer dollars and pitting small teams of government lawyers against the world\u2019s most powerful and deep-pocketed corporations.\n <\/p>\n

\n
\n <\/source><\/source><\/source><\/picture>\n <\/div>\n<\/div>\n

\n The point of it all, Khan told CNN in a recent interview, is to bring more of the government\u2019s resources to bear on the daily economic problems of ordinary Americans.\n <\/p>\n

\n \u201cWhat we hear day-in, day-out is that people too often feel like they\u2019re not getting a fair shake in the market,\u201d Khan said. \u201cThere\u2019s more and more public awareness about [how] decisions the FTC is making on antitrust or consumer protection are affecting people in their day-to-day lives.\u201d\n <\/p>\n

\n If her push pays off, Khan could become one of the most consequential FTC chairs in history. But, two years into her tenure, she is up against determined opponents in business and law, and a mixed record in court that her critics say is evidence of her folly.\n <\/p>\n

\n She may also be running out of time. Khan\u2019s term expires next September. And should a Republican win the White House in 2024, or should President Joe Biden win reelection and choose another FTC chair, her time at the agency helm could soon come to a close. In the interview, Khan acknowledged she would step aside if a new administration sought to replace her. \u201cThat\u2019s the president\u2019s prerogative,\u201d she told CNN.\n <\/p>\n

\n For now, at least, Khan leads an agency that has a dizzying number of active investigations, lawsuits and regulatory proposals on the table. Many of them aren\u2019t close to being resolved, and some may not reach a conclusion until long after she is gone. But her supporters and critics agree: From the beginning, Khan has helped spark a global debate about the power of technology companies and the role governments play in regulating them.\n <\/p>\n

\n \u201cEverybody in our field, they know who Lina Khan is, and they know about her ideas,\u201d said William Kovacic, a former FTC chair during the George W. Bush administration.\n <\/p>\n

\n Khan\u2019s path might have turned out differently had it not been for Barry Lynn, an early mentor who hired Khan in 2011 not long after her graduation from Williams College.\n <\/p>\n

\n In their initial conversations, Lynn recalled, Khan seemed to have an intuitive grasp of how corporate control of markets could have important effects on everything from workers to consumers.\u202f\n <\/p>\n

\n One of Khan\u2019s first projects at Open Markets \u2014 at the time part of the Washington think-tank known as the New America Foundation \u2014 was an in-depth study of Amazon and its impact on authors and book publishing \u2014 a line of inquiry that would come to define her career and led to a viral 2017 law article she wrote about Amazon\u2019s economic dominance.\n <\/p>\n

\n But she also explored other topics, including chicken farming. That led to a 2012 article in The Washington Monthly arguing the Obama administration failed to act decisively enough to stop large poultry processors from exploiting independent chicken farmers on a vast scale.\n <\/p>\n

\n Even in those early writings, Khan\u2019s critical view of the status quo was emerging \u2014 questioning the government\u2019s reluctance to sue meat processors amid fears that litigation could lead to damaging court losses.\u202f\n <\/p>\n

\n \u201cOne wonders,\u201d she wrote, \u201cwhether the administration\u2019s actions\u2014taken as a whole\u2014did not set the farmers back as much as would a loss in court.\u201d\u202f\n <\/p>\n

\n That appetite for litigation has persisted. Khan has consistently indicated a preference, if not a zeal, for taking companies to court.\u202fEven losing could still help more broadly, she has argued, if it convinces Congress to update the laws in response to new competitive harms.\n <\/p>\n

\n Driving her convictions, Lynn said, is a powerful sense of justice, as well as a \u201chealthy sense of anger.\u201d\u202f\n <\/p>\n

\n
\n \"Lina<\/source><\/source><\/source><\/picture>\n <\/div>\n<\/div>\n

\n \u201cI remember one day sitting around talking,\u201d Lynn recalled of the chicken farming story. \u201cShe was like, \u2018What these people are doing, it\u2019s just wrong \u2026 It\u2019s insulting, because it is intellectually so unjustifiable.\u2019\u201d\u202f(Khan said she did not recall saying those exact words but agreed with the overall sentiment.)\n <\/p>\n

\n Khan blamed the farmers\u2019 plight on Reagan-era policymakers who pushed to reinterpret antitrust law primarily through consumer prices instead of a broad spectrum of shared societal values \u2014 a move she said promoted consolidation, reduced competition (and accountability) among meat processors, and enabled the farmers\u2019 abuse in the first place.\u202f\u202f\n <\/p>\n

\n That shift in legal doctrine was profound, shaping how courts have applied antitrust law ever since.\n <\/p>\n

\n Defenders of the change have argued it\u2019s led to decades of cheaper prices for consumers and created more stability for businesses.\u202f\n <\/p>\n

\n Khan and her allies have argued, by contrast, that an excessive focus on price overlooks how companies might harm competition in less obvious ways, affecting everything from labor markets to product quality to consumer privacy.\n <\/p>\n

\n Khan\u2019s ideas have challenged the closest thing to a sacred cow in antitrust law. Now, armed with the power to investigate companies and to frustrate mega-deals, she is betting big and taking on America\u2019s richest businesses to test her vision for a more expansive form of monopoly enforcement.\n <\/p>\n

\n \u201cShe\u2019s sort of trying to overturn a very well-entrenched orthodoxy,\u201d and \u201cdecades worth of court decisions that have been influenced\u201d by it, said Robert Hockett, another early mentor of Khan\u2019s who now teaches at Cornell Law School. \u201cIt\u2019s a tough road to hoe.\u201d\n <\/p>\n

\n While still a law school student, Khan and her 2017 article on Amazon \u2014 published in the Yale Law Journal \u2014 championed a unique approach to antitrust policy and sparked a new explosion of academic research on the topic.\n <\/p>\n

\n It also caught the eye of lawmakers trying to find new ways to reel in the dominance of America\u2019s powerful technology companies.\n <\/p>\n

\n In 2019, when he was staffing up a landmark investigation of Big Tech, Rhode Island Democratic Rep. David Cicilline deliberately sought out Khan. By this time, her paper on Amazon had already taken the academic world by storm, and he believed hiring her could amplify what he saw as the first antitrust probe performed by Congress in half a century.\u202f\n <\/p>\n

\n \u201cI knew that if we could bring Lina into the investigation, it would really elevate people\u2019s expectations,\u201d Cicilline told CNN in an interview.\n <\/p>\n

\n With Khan\u2019s help, the 16-month investigation produced a 450-page report concluding tech giants enjoyed unchecked \u201cmonopoly power\u201d that led to a raft of legislative proposals. The most ambitious of those never became law, but Khan\u2019s role in the probe, which Cicilline described as \u201ccritical,\u201d helped further raise her profile.\n <\/p>\n

\n
\n \"The<\/source><\/source><\/source><\/picture>\n <\/div>\n<\/div>\n

\n In 2021, a few months after the House report was released, the recently elected Biden announced Khan would not only serve as an FTC commissioner but would leapfrog the agency\u2019s existing members to become its most senior appointee.\n <\/p>\n

\n In office, Khan has embarked on an ambitious program not only to scale up US antitrust and consumer protection enforcement but also to expand the scope of the law in new ways.\n <\/p>\n

\n In addition to last month\u2019s Amazon suit, the FTC under Khan has sued the company for allegedly tricking users into signing up for its Prime service and convinced Amazon to adopt multimillion-dollar privacy settlements surrounding its Alexa and Ring home devices.\u202f\n <\/p>\n

\n Khan has continued an FTC lawsuit filed during the Trump administration that seeks to break up Facebook-parent Meta. She sought to prevent Meta from buying a virtual reality startup, Within Unlimited, and, in a rare move, to revisit and expand the scope of Meta\u2019s historic $5 billion Cambridge Analytica settlement to cover children\u2019s personal data.\u202f\n <\/p>\n

\n Khan also brought Microsoft back under the antitrust microscope for the first time since the turn of the millennium, pushing to block the company\u2019s $69 billion acquisition of gaming giant Activision Blizzard.m\n <\/p>\n

\n Since Khan\u2019s appointment, the FTC has investigated or sued to block more than three dozen proposed mergers, said agency spokesperson Douglas Farrar, which in turn has led to 17 settlements, 17 deals being abandoned by the companies and one \u2014 the Within Unlimited case \u2014 where the FTC has conceded in the courts.\n <\/p>\n

\n
\n \"FTC<\/source><\/source><\/source><\/picture>\n <\/div>\n<\/div>\n

\n Some of those cases reflect stepped-up enforcement against vertical mergers, a type of deal involving companies in different lines of business that critics including Khan have said were largely ignored in recent decades due to an excessively narrow focus on consumer prices.\n <\/p>\n

\n In one of her most significant policy moves, Khan and her Justice Department counterpart, Jonathan Kanter, have worked to revamp the federal guidelines that describe how and when the US government may consider a merger to be illegal, including, for the first time, how a merger\u2019s impact on worker pay and benefits may affect a deal\u2019s overall legality.\n <\/p>\n

\n Other major steps Khan has taken include proposals to ban noncompete clauses in employer agreements the FTC estimates have cost American workers $250 billion a year.\n <\/p>\n

\n Khan has also made data privacy issues a priority. In a pair of record-breaking settlements, Epic Games, the maker of \u201cFortnite,\u201d agreed to pay more than half a billion dollars to resolve allegations it tricked players \u2014 including children \u2014 into making unintended purchases within the game. And after the reversal of Roe v. Wade, the FTC has made a point of highlighting how it is paying attention to the misuse of reproductive health data.\n <\/p>\n

\n Along the way, Khan has faced several high-profile court setbacks, including in some of the aforementioned cases, that have given her opponents more ammunition.\n <\/p>\n

\n \u201cYou are now 0 for 4 in merger trials. Why are you losing so much?\u201d demanded California Republican Rep. Kevin Kiley at a House oversight hearing this summer. \u201cAre you losing on purpose?\u201d\n <\/p>\n

\n Earlier this year, the FTC gave up its Within Unlimited case against Meta after a federal judge declined to block the merger. The rejection dealt a blow to the FTC\u2019s novel legal theory that Meta was trying to thwart future competition in a developing market for virtual reality tech. And federal courts have twice rejected the FTC\u2019s bid to halt Microsoft\u2019s Activision merger, which officially closed last week after being approved by UK regulators.\n <\/p>\n

\n In her interview with CNN, Khan said she was \u201cquite happy\u201d with the FTC\u2019s merger work and cited as success feedback she\u2019s received from business leaders about the agency\u2019s \u201cdeterrent effect.\u201d\n <\/p>\n

\n \u201cWe\u2019ve heard that executives are taking much more seriously the potential antitrust risks of deals on the front-end,\u201d she said, adding that \u201cdeals are not being pursued because they\u2019re recognized on the front end as being legally suspect.\u201d\n <\/p>\n

\n
\n \"Chair<\/source><\/source><\/source><\/picture>\n <\/div>\n<\/div>\n

\n Beyond the litigation, many of Khan\u2019s proposed rules are bound to invite legal scrutiny. Topping the list is the FTC\u2019s draft rule to ban noncompetes, said Kathleen Bradish, acting president of the American Antitrust Institute.\n <\/p>\n

\n \u201cIf they try to implement this rule, it\u2019s going to be tied up for a while in the courts,\u201d said Bradish, who has otherwise supported the FTC\u2019s tougher competition agenda.\n <\/p>\n

\n Khan\u2019s corporate opponents argue that the very record that cemented her reputation should disqualify her. Amazon and Meta have both pushed for Khan to recuse herself from matters involving the companies, questioning her objectivity.\n <\/p>\n

\n Khan resisted those calls, saying she has never prejudged any case or set of facts and that she has no financial conflicts of interest that would necessitate a recusal. Last year, the judge presiding over the FTC\u2019s case to break up Meta ruled Khan did not have to recuse herself from that case, because, among other things, Khan\u2019s views on antitrust policy did not amount to a \u201cpersonal animosity\u201d that would legally disqualify a prosecutor.\n <\/p>\n

\n Khan\u2019s critics are not limited to those outside the FTC; its two Republican commissioners have stepped down after objections to her handling of the agency. One of the two GOP commissioners, Christine Wilson, resigned in February in protest, accusing her in an op-ed not only of bias against companies like Meta but also of governmental power grabs. (Wilson did not respond to requests for an interview; Khan responded to Wilson\u2019s departure with a joint statement alongside the agency\u2019s two other Democrats thanking her for her service. The other former GOP commissioner, Noah Phillips, declined to be interviewed.)\n <\/p>\n

\n The lawsuit the FTC filed last month against Amazon is a far more streamlined set of arguments than critics have lobbed at the company in the past.\n <\/p>\n

\n It focuses on Amazon\u2019s use of allegedly unfair tactics to ensure it always offers the lowest prices on the internet and to encourage sellers to purchase Amazon\u2019s own fulfillment services. The case makes no claims of liability due to use of seller data, alleged predatory pricing, past mergers or its cloud computing business, all of which figured prominently in either the congressional report Khan helped author, her 2017 paper or both.\n <\/p>\n

\n If there is any discrepancy between her earlier work and last month\u2019s lawsuit, Khan told CNN, it can be chalked up to two things: investigative access that Khan didn\u2019t have as a law student and changes in industry practices since 2017 and even since 2019 when she worked on Capitol Hill.\n <\/p>\n

\n \u201cYour entire understanding of what\u2019s going on beneath the hood is going to look different than when you\u2019re on the outside doing independent research,\u201d Khan said. More generally, she added, the suit by the FTC and the states \u201cis about tactics that Amazon is engaging in today.\u201d\n <\/p>\n

\n
\n \"The<\/source><\/source><\/source><\/picture>\n <\/div>\n<\/div>\n

\n Whatever Amazon may have done in the past, she argued, it is now in an \u201cextraction mode\u201d that illegally siphons value from consumers and independent sellers by anticompetitive means.\n <\/p>\n

\n Amazon has said the case is \u201cwrong on the facts and the law,\u201d and a trade group that represents the company, NetChoice, argues that Khan\u2019s track record shows she has already fallen flat on the lofty expectations of systemic change that accompanied her confirmation.\n <\/p>\n

\n \u201cThey aren\u2019t picking good cases,\u201d said Carl Szabo, NetChoice\u2019s vice president and general counsel. \u201cIt\u2019s not making smart bets.\u201d\n <\/p>\n

\n \u201cThere\u2019s no reason to think her motives are anything other than genuine,\u201d Szabo added. \u201cUnfortunately, the effects of her actions just happen to produce bad outcomes.\u201d\n <\/p>\n

\n Many of Khan\u2019s policy initiatives \u2014 as for any agency chief \u2014 could take multiple administrations to stick, and only if those future administrations remain committed to initiatives like Khan\u2019s draft merger guidelines and noncompete rules.\n <\/p>\n

\n Several legal experts drew sports analogies: Khan is still in the early innings, some argued. To win more matches requires playing more and being willing to lose, another said. And a third argued that securing wins is critical to boosting team morale.\n <\/p>\n

\n Whatever happens in the courts, though, Khan has created a durable change in how people talk about competition, according to Kovacic.\n <\/p>\n

\n \u201cAll of a sudden, the upholders of the status quo look old and tired to me. There\u2019s truly a generational change happening,\u201d Kovacic said. \u201cI think that\u2019s going to last.\u201d\n <\/p>\n<\/p><\/div>\n

Read the full article here<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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