The FTC’s Bid to Become Powerful
Under its new chair Lina Khan, the Federal Trade Commission has taken aim at the most influential U.S. tech companies in a bid to usher in a new era of antitrust enforcement.
The Federal Trade Commission (FTC) is an independent agency of the U.S. federal government that is tasked with promoting competition in markets and protecting consumers from unfair or deceptive business practices. Under U.S. antitrust law, no company can quash market competition through predatory pricing, monopolistic acquisitions, or other tactics that unfairly crowd out competitors. With about 1200 staff, the FTC is a relatively small agency that has shied away from high-profile antitrust cases in recent years, but since the appointment of 34-year-old agency head Lina Khan in 2021, it has taken aim at some of the most influential tech companies in the world, including Meta, Amazon, and OpenAI.1
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The commission's primary enforcement mechanism is civil suits, which are processed through federal district courts and prosecuted by FTC attorneys. The agency can attempt to set legal precedent by focusing aggressive litigation on certain industries, but it also has the authority to make “trade regulations rules” to address unfair behavior across an entire industry.2 In this case it also relies on the court system for enforcement.
Lina Khan is a Democrat from the progressive wing of the party and an unusually young choice for chair of the commission. Khan is a legal scholar who wrote a viral article for the Yale Law Journal in 2017 that argued Amazon’s business model was anticompetitive.3 She later worked at the FTC as a legal fellow and then as counsel to the House antitrust subcommittee, before being appointed head of the commission. Under Khan, the agency has successfully initiated a sweeping antitrust suit against Meta and is trying to force it to sell off Instagram and WhatsApp, which would effectively destroy the social media empire built under founder and CEO Mark Zuckerberg. The agency is also preparing a similarly sweeping case against Amazon.4
Khan argues that antitrust enforcement, which has focused on keeping consumer prices down in recent decades, is unprepared for the problem of “platform advantage” in which tech companies stifle competition by retaining sole control of the intangible online platforms where commerce occurs.5 Online websites for social media or e-commerce are often free for consumers to access and are able to keep the costs of goods low, thus giving a traditional antitrust regime little grounds for enforcement. Khan thus wants to launch more aggressive antitrust enforcement against large American corporations, especially in software.
The Structure and Powers of the FTC
The FTC has a budget of $490 million for 2023 and approximately 1200 employees, around half of whom are legal professionals.6 They are organized into three bureaus for preventing anticompetitive mergers and acquisitions, protecting consumers from deceptive business practices, and evaluating the economic impact of the agency’s actions.7 In practice, the FTC is an agency of litigators.
The agency is overseen by five commissioners, who have staggered, seven-year terms, one of whom holds more power than the others as chair of the commission. It is an independent agency, so commissioners are nominated by the president and confirmed by the Senate. No more than three commissioners can be from the same political party, which in practice means that three are aligned with the presidency, and the other two are from the opposition party. This is the same commission structure employed by the SEC and the FTC’s powers and enforcement procedures are similar to the SEC’s as well.
The FTC is empowered to investigate companies or industries it suspects are violating antitrust law, and can file administrative complaints or initiate judicial proceedings if it believes the law has been violated. It was established in 1914 to eliminate the practice of industry leaders using jointly-managed trusts to consolidate their market share and eliminate competition. The agency can only bring civil suits, which are prosecuted by its own attorneys in federal district courts and may be appealed to the U.S. Court of Appeals and ultimately to the Supreme Court.8 Any district court may be used, which follows statutes regarding the location where a company does business or where the law was alleged to have been broken.9 In lieu of federal court proceedings, the FTC can also file complaints under its own administrative process called an “adjudicative proceeding.”
While the FTC sits outside of any federal cabinet department, it shares jurisdiction over civil antitrust enforcement with the Department of Justice’s Antitrust Division, with whom the commission coordinates. Unlike the commission, the Justice Department can bring criminal antitrust complaints. While the FTC conducts its own background investigations and makes initial determinations about what constitutes monopolistic or anticompetitive practice, the court system ultimately has the final say. Cases are often resolved not through final judgment in the courts but through “consent decrees,” a type of settlement where the agency and a company it is suing agree to divest certain assets or alter business practices in exchange for no admission of liability.
The FTC has the power to demand testimony, documents, or physical evidence from companies or individuals without first filing a lawsuit, on pain of fines and judicial sanctions. Through subpoenas, the agency can compel the production of documents or oral testimony. But the agency can also use a “civil investigative demand” in order to compel the production of written answers to questions and physical evidence, including by entities not within the territorial jurisdiction of the United States.10 Non-compliance with either subpoenas or civil investigative demands can result in the offending party being found in criminal contempt and, though both can be appealed or quashed, in practice this is very rare.11
In its capacity for enforcing antitrust law retroactively, the FTC is similar to a state-mandated prosecutor of class-action lawsuits, with the agency collectively representing consumer groups that have been harmed. But its size makes it capable of greater impact than private litigators who may be constrained by staffing and cost. Successful suits typically result in settlements, monetary penalties, or mandated consumer disclosures. The agency also has the authority to promulgate “trade regulation rules” regarding what business practices are considered unfair or deceptive in an industry and to file suits against violators of these rules.12
The FTC also has an impact on industry through its mergers and acquisitions enforcement. It proactively reviews proposed mergers over a value threshold of $111.4 million, and can bring charges if it finds them anticompetitive.13 Between 2021 and 2022, the agency brought 22 such cases, of which it won 15, a rate of success roughly similar to its approximately 60% success rate in the 1980s and 1990s.14
Despite its theoretically powerful mandate to set industry rules and break up large monopolies, the FTC has in practice been a relatively unremarkable agency that has avoided rocking the boat, instead focusing on more clear-cut cases of deceptive advertising or predatory pricing. The acquisitions of Instagram and WhatsApp, in 2012 and 2014 respectively, were both approved by the commission at the time.15
Both of the two highest-profile antitrust cases in recent U.S. history—namely the breakup of AT&T’s telephone monopoly in 1984 and the case against Microsoft’s browser bundling policies that concluded in 2001—were led not by the FTC, but by the Justice Department. The commission in fact considered pursuing antitrust cases against Microsoft, but deadlocked on a vote in 1993 and closed its investigation. The Justice Department reopened its investigation to initiate settlement negotiations in 1994, building on the commission’s research.16 The FTC’s new focus on some of the largest tech companies in the world is thus a break with convention and has been spearheaded by commission chair Lina Khan.
The Big New Push Against Tech
As of August 2023, the FTC’s flagship case is a broad antitrust suit against Meta that alleges the company acquired Instagram and WhatsApp to illegally stifle competition, due to the company’s own inability to innovate in mobile apps. The commission also originally argued that Meta’s policies for developers on its platforms were also designed to prevent competitors to Meta’s services from forming, but this allegation was struck by the judge. The agency is seeking relief up to and including the divestiture of Instagram and WhatsApp into separate independent businesses.17 This would effectively destroy Meta. The case is being tried in the U.S. District Court for the District of Columbia. A trial is being targeted for 2024 at the earliest, though this is likely to be delayed further over many procedural disputes.
Importantly, this case was not originally brought by Lina Khan, nor was it the only antitrust suit to be filed against Meta. The case was first launched in December 2020 by the FTC under President Donald Trump and chair Joseph Simons, just a month before both left office. On the same day it was filed, a coalition of attorneys-general from 48 U.S. states also filed a very similar antitrust suit against the company.18 But both of these complaints were dismissed by the courts for various reasons, the FTC suit first in June 2021 and the attorneys-general suit repeatedly, most recently on appeal in April 2023.19 In August 2021, however, Lina Khan’s commission amended the dismissed complaint, which was then allowed to proceed and remains live. This means Khan has succeeded where both her predecessors under Trump and the state attorneys-general have failed.
The core of the commission’s argument is that Meta deliberately sought to “buy or bury” its potential competitors in “personal social networking” rather than develop superior features that would retain and attract users.20 The agency describes the network effects of social media platforms—the dynamic where the value of a network to a user increases as more users join it—as a unique and strong barrier to entry for new competitors in social media. As a result, the commission argues that Meta’s monopoly can only be broken by the courts.
Khan has also been preparing a major antitrust case against Amazon. Having collected millions of documents and interviewed dozens of witnesses including founder Jeff Bezos, the case is expected to be filed sometime soon in the second half of 2023.21 Going by media reports and Khan’s own seminal 2017 law journal article on Amazon, the case will most likely argue that Amazon has monopoly power and engages in a number of different anticompetitive practices, including such things as preventing its third-party merchants from offering their products for lower prices outside of Amazon, or policies that “force” merchants to use Amazon’s logistics and advertising services. As with Meta, the agency will likely seek to “restructure” Amazon, although it’s not clear what that would look like in practice.22
While these cases seeking to break up Meta and Amazon are the most ambitious, under Khan the FTC has also been more aggressively pursuing relatively more minor violations, or perceived violations, of antitrust or consumer protection laws. The commission tried to block Meta’s acquisition of a virtual reality startup called Within, which was ultimately dismissed by the court in a win for Meta. It also tried and failed to block Microsoft’s acquisition of video game giant Activision Blizzard. Within a period of less than thirty days in the summer of 2023, the agency filed two separate complaints against Amazon alleging that it was enrolling users in Amazon Prime without consent and that it was violating the Children’s Online Privacy Protection Act (COPPA) by keeping Alexa voice recordings.23 This latter case was filed together with the Department of Justice.
Khan has stated that enforcement agencies need to be vigilant as AI technology develops, in order to prevent potential uses in fraud, and to prevent monopolies from quashing competition at an early stage. As a result, the agency has opened an investigation into OpenAI as of July 2023.24 Given how nascent the market is for generative AI tools in text, audio, or images, the FTC seems to be reaching instead on the consumer protection angle. It is simultaneously citing “false, misleading, disparaging or harmful” statements about public figures allegedly generated by the company’s ChatGPT large language model, and has requested information about the company’s data privacy practices.25
Libel and defamation are not within the agency’s jurisdiction, and the privacy details are likely an attempt to catch the company on a technicality that will produce a settlement, a strategy it has already succeeded in using with Microsoft.26 The OpenAI investigation is a fairly straightforward example of how the FTC under Lina Khan is paying close attention to new developments in the tech sector and is proactively launching investigations as warning shots towards potentially large and monopolistic companies; like its complaints against Meta’s acquisitions or Amazon Prime, it is a power grab to see how much more authority the agency can get away with.
The FTC has also turned its sights on cryptocurrency, a largely unregulated industry that occupies a legal gray area and has been the setting for high-profile crimes pertaining to untruthful advertising and deceptive practices. The agency has warned that consumers lost a collective $1 billion to cryptocurrency scams and unlawful investment schemes between 2021 and 2022, and its enforcement actions have very legitimate justifications therein that comport with the agency’s focus on consumer protection prior to Khan.27
Both the FTC and the SEC have brought cases against cryptocurrency companies, which has contributed to a narrative that the two agencies are competing for jurisdiction over the nascent industry. However, given that each agency is empowered to bring enforcement actions for different reasons, there is little actual competition, but rather cases that potentially overlap. The commission acts in the interest of consumer protection and fair competition, whereas the SEC enforces securities laws and prevents market manipulation.
The agency is investigating now-bankrupt cryptocurrency brokerage Voyager Digital, which experienced a run on its reserves as a result of high-risk lending practices. The investigation pertains to “deceptive and unfair marketing of cryptocurrency to the public,” likely relating to the company’s lack of public disclosures regarding its lending practices and false claims that its funds were FDIC-insured.28 Its now-settled case against cryptocurrency platform Celsius took a similar tack, alleging that the company similarly misappropriated customer funds, misrepresented its reserves, and falsely claimed to insure customer assets while promising customers their deposits were safe.29 Its proposed settlement permanently bans Celsius and its affiliates from offering or promoting financial products on top of a $4.7 billion fine.30
The agency also has a proven track record with smaller-scale enforcements. Before Khan was appointed, it had successfully prosecuted cases against Bitcoin Funding Team and My7Network, multi-level marketing schemes that exploited consumers. The terms of the settlement prevents these operators from participating in similar practices.31 The FTC’s enforcement actions in cryptocurrency are qualitatively different from its actions against Meta and Amazon or OpenAI. While the former are explicit trust-busting expeditions and the latter a warning shot, its cryptocurrency cases are fundamentally in line with its core and widely-accepted mission of punishing fraudsters to protect consumers. This does show, however, that the agency is a functional institution in this regard and capable of applying its inherited procedures and thinking to new sectors.
Lina Khan is Part of the Progressive Faction
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Lina Khan is an unusually ideologically-driven and—for the standards of the relatively geriatric U.S. federal government—young commission chair. She was only 32 years old when appointed in 2021. While competent and driven, Khan is not the live player driving the antitrust push against major tech companies, which both predates her and of which her tenure at the commission is only a part. Rather, the antitrust push originates in an unusual and narrow alliance of the progressive wing of the Democratic Party with the populist wing of the Republican Party, both of which want to crack down on Silicon Valley. It was Trump’s FTC that originally opened the antitrust cases against Meta and Amazon, while state attorneys-general have variously launched their own cases, including in bipartisan coalitions.
In 2021, Khan was confirmed by the Senate to her position as commission chair in a surprisingly bipartisan vote that saw all Democrats vote in favor, while Senatorial Republicans were split down the middle. The emphatically pro-Trump Senator Josh Hawley voted in favor, while establishment Republican luminaries like Mitch McConnell and Mitt Romney voted against.32 President Joseph Biden has adopted the progressive stance on antitrust broadly; the Justice Department’s Antitrust Division filed another far-reaching civil antitrust suit in January 2023 against Google, making it the second such case against Google, following a first one filed together with state attorneys-general in late 2020. Criminally, the Justice Department has begun to once more investigate criminal antitrust violations, including securing its first criminal conviction for monopolistic practices in decades in late 2022, against a local Montana businessman.33
One of the key leaders of the progressive faction in the Democratic Party is Massachusetts Senator Elizabeth Warren, who is a formidable political player in her own right. Prior to her election in 2012, Warren was an academic and author on public policy, writing a famous book in 2004 titled The Two-Income Trap, which argued American families were going bankrupt due to rising costs in childcare, education, and healthcare. Before even holding an elected office, she succeeded in the difficult task of lobbying for the creation of a new federal bureaucracy in 2011, the Consumer Financial Protection Bureau, which now has a budget of about $600 million and over 1500 staff. Warren was almost appointed its first director as well by President Barack Obama, but was instead made “Special Advisor” for the bureau due to the unlikelihood of being confirmed in the Senate over Republican opposition.
Warren leveraged her academic prestige, popular non-fiction books, and advocacy for middle-class consumers into relationships with top Democratic leaders, which resulted in her appointment to the Congressional Oversight Panel of the Troubled Asset Relief Program (TARP) i.e. the bailout of major U.S. banks following the 2007-08 global financial crisis. Warren is an ideological progressive who believes that the American middle class is being financially squeezed by large profit-seeking corporations and wealthy business leaders. She views the solution as greatly expanded social welfare programs, as well as greatly expanded regulation of corporations. Her signature policy proposals over the years have included a wealth tax, universal health care, a higher minimum wage, and so on, in addition to greater regulation of corporate activity.
Although she has run and lost in Democratic presidential primaries, Warren has also sought to achieve her policy goals by cultivating the careers of like-minded progressives. Several prominent younger Democratic politicians and officials have been called protégés of Warren’s, including Boston mayor Michelle Wu and California congresswoman Katie Porter, who is running to replace 90-year-old Dianne Feinstein as a Senator for California in 2024. Lina Khan also seems to be one of these young progressives cultivated by Warren.
Khan emigrated to the U.S. from the United Kingdom as a child. Her father was an upper-level management consultant and her mother worked for Thomson Reuters. After graduating from Williams College with a degree in political science, Khan worked at the center-left think tank New America Foundation, where between 2010 and 2014 she was an economic researcher under senior fellow Barry Lynn, a critic of market consolidation. Khan appears to have absorbed most of her ideological inclinations from Lynn, and he may have seen in her someone willing to become more radical through the course of her work.34
Lynn remained an ally and formative social negotiator for Khan after she was promoted to the legal director of their program and began her law degree at Yale. In 2016, Lynn and Khan were contacted by one of Senator Elizabeth Warren’s advisors to discuss policy recommendations. Warren was assembling a brain trust of antitrust advocates ahead of the 2016 presidential election, and she had scouted similar figures from other corners of the antitrust ecosystem including Jonathan Kanter, a private practice lawyer who would later become the head of the Justice Department’s Antitrust Division under Biden. Warren was able to incorporate stronger anti-conglomerate messaging into her political platform as backed by experts, and can be considered one of Khan’s formative patrons alongside Lynn.35
For three months in 2018, Khan worked as a legal fellow at the FTC under commissioner Rohit Chopra. Chopra is a long-time Warren ally; in 2010, he joined the newly-created Consumer Financial Protection Bureau, where he worked with Warren as the agency’s assistant director.36 Khan would serve as lead counsel to the House antitrust subcommittee’s investigation of online social media sites in 2020, while working as an associate professor at Columbia University. She was recruited for the position by David Cicilline, the subcommittee’s leader, who has allied with Warren on various antitrust actions and bill proposals, including one to break up Meta.37
Warren was likely involved in brokering the appointment of Lina Khan over more conventional candidates that included Washington, D.C. Attorney General Karl Racine and Anne-Marie Slaughter, a former aide to Senator Chuck Schumer.38 It is known that Biden and Warren have an unofficial advisory relationship, through which Biden has adopted a number of her stances and policy proposals, including her willingness to crack down on mergers of large companies.39 Warren has a deep understanding of how to leverage power within presidential administrations, and has led a progressive Senate coalition in blocking cabinet appointments before.40 It is possible that the Biden administration is avoiding drawn-out battles by making nominations she is amenable to.
Khan is Testing the Limits of Bureaucratic Expansion of Power
Khan’s new stance has led to unusual turmoil at the agency. At present, the commission has two vacant opposition seats and is overseen by three Democratic commissioners. Its two previous Republican commissioners—Christine Wilson, a former FTC chief of staff and a private litigator; and Noah Phillips, former chief counsel to Senator John Cornyn—resigned in objection to Khan’s antitrust strategy, with both stating that Khan is unwilling to compromise with dissenting commissioners.41 Wilson and Phillips have argued against budget increases for the agency on the grounds that its funds are being misused to prosecute cases against big tech without due cause.42 With Phillips leaving office in October of 2022 and Wilson in March of 2023, the commission has been without an opposition voice for months, in which time it has brought around forty cases.43
Outside of Khan, the remaining commissioners are Rebecca Kelly Slaughter, former chief counsel to senate majority leader Chuck Schumer; and Alvaro Bedoya, former chief counsel to senator Al Franken and the founding director of the Center on Privacy & Technology within Georgetown University’s law school. They are allowed to continue bringing cases because under federal statute, vacancies in the commission do not impair the rights of the other members to exercise the powers available to them.44
In May 2023, Republican Congressman Scott Fitzgerald introduced a bill that would prohibit the agency from acting without at least one opposition commissioner.45 Khan later testified before the House Judiciary Committee in an oversight hearing in July 2023. But given that Republicans have only a slim majority in the House and Democrats control both the Senate and Presidency, this bill is unlikely to pass. The president can only remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office.”46 Biden, who has proved hawkish regarding antitrust and has appointed similarly progressive figures for leadership positions with the National Economic Council and the Department of Justice, has not elected to do so.47
Biden’s recently-submitted Republican nominees for the empty seats are Andrew Ferguson, the solicitor general of Virginia and former chief counsel to senate minority leader Mitch McConnell, and Melissa Holyoak, the solicitor general of Utah and a former attorney with nonprofit, libertarian-geared law firms. Given that Khan still leads a Democratic majority, filling these seats is unlikely to disempower the prevailing coalition.48 In addition, the nominations were likely delayed due to the absence of Senate minority leader Mitch McConnell due to injury, giving the Democratic coalition ample time to exercise its power.49
The agency appears to be undergoing a crisis of trust as a result of its leadership. Reportedly 44 senior staff attorneys have resigned between 2021 and 2022, not counting planned retirements, and a 2022 employee survey found that under 50% of the FTC’s staff believe that the agency’s leadership maintains high standards of integrity. In 2022 under the previous chair, that figure was 87%.50 This is a relatively clear sign that Khan’s ideologically-driven change in policy is a break with the agency’s convention.
Khan hired three former staffers for Rohit Chopra to serve as her chief of staff and heads of two bureaus.51 Later, once commissioner Noah Phillips had resigned, she initiated a vote that expanded the agency’s ability to prosecute antitrust violations by removing a 2015 clause from its charter which required that rulings restraining trade or commerce be “reasonable” economically.52 Khan defended the vote by arguing that it was never Congress’ intention to restrict the operations of the commission to such a narrow scope, and the official FTC statement provides textual evidence from the agency’s 1914 foundational acts to support her claim. Regardless of the validity of the legal justification, the vote was approved by a 3-1 majority as it was nearly guaranteed to. She is also attempting to expand the agency’s rights to review mergers by expanding the existing reporting procedures to include documentation of other mergers and acquisitions completed within 10 years.53
Khan has been able to resist attempted checks on her power. When the commission was bringing its case against Meta regarding its acquisition of Within, commissioner Christine Wilson alleged that Khan was disregarding due process and could not act impartially, having advocated for the breakup of Meta before bringing the case.54 Wilson prompted the agency’s ethics official, Lorielle Pankey, to author an interagency memo to Khan asking her to recuse herself, which she refused to do. Pankey was then revealed by a progressive group called the Revolving Door Project to hold Meta stock, in an unexpected but timely attempt to discredit her.55 There is not a definitive link between this group and Khan’s coalition, but its founder Jeff Hauser was a former antitrust attorney with the Department of Justice, and has been an outspoken antitrust supporter who has backed Khan in the press.56
Whether the commission’s new stance becomes an existential threat to tech companies, or simply a relatively minor bureaucratic drag that requires them to pay for expensive lawyers to fight various lawsuits, ultimately comes down to the decisions of the federal court system. Many of the agency’s aggressive actions have already been slapped down by the courts. But its flagship case has not. The consensus of legal experts seems to be that the FTC nevertheless has very slim chances of persuading a court to rule that Meta should be broken up, though other remedies like a ban on further acquisitions or other such mandated changes in business practices are more likely.57
This consensus relies on the conservatism of federal judges when it comes to breaking precedent and convention, especially in complex business cases. There is a way for the FTC to circumvent this obstacle, however: demanding a jury trial. Compared to a career federal judge with sole authority in a bench trial, a jury would almost certainly be far more amenable to decide against a large tech company with at best mixed PR like Meta. This likely gives the commission a plausible path to achieving its most ambitious goals.
Notably, the Justice Department’s new January 2023 case against Google formally demands a jury trial, unlike previous cases.58 This suggests a new change in strategy on the part of progressives in government, who have found judges to be too timid. The flagship FTC case against Meta has not formally demanded a jury trial, but it is unclear if this means a jury trial has been definitively waived or not.59 According to recent court filings, the court has ordered that Meta’s trial be bifurcated into two separate proceedings: first to determine liability, then separately to determine any remedies. A key signal in the near future will be whether the commission’s upcoming antitrust case against Amazon also demands a jury trial or not.
Khan’s appointment and leadership of the agency show that the anti-corporate, progressive wing of the Democratic Party is still a faction capable of exercising power despite repeated presidential election losses to establishment Democrats. It is also a test case in whether a previously unremarkable government bureaucracy can become more powerful through a series of high-profile battles with some of the world’s largest and most valuable tech companies, at whose expense its power will grow. Khan is determined to score big wins, up to and including breaking up Meta and Amazon, something unprecedented in recent U.S. history and which would set a new and hard ceiling on growth expectations for tech startups. The companies will have little recourse available through lobbying, but will have to argue their cases both in court as well as in public relations campaigns to shift the perceived norms that judges and juries rely on.
Cat Zakrzewski, “FTC investigates OpenAI over data leak and ChatGPT’s inaccuracy,” The Washington Post, July 13, 2023, https://www.washingtonpost.com/technology/2023/07/13/ftc-openai-chatgpt-sam-altman-lina-khan/
“A Brief Overview of the Federal Trade Commission's Investigative, Law Enforcement, and Rulemaking Authority,” U.S. Federal Trade Commission, May 2021, https://www.ftc.gov/about-ftc/mission/enforcement-authority.
Lina Khan, “Amazon’s Antitrust Paradox,” Yale Law Journal, Vol. 126, No. 3, January 2017, https://www.yalelawjournal.org/issue/issue/volume-126-issue-3-january-2017.
Josh Sisco, “FTC readies lawsuit that could break up Amazon,” Politico, July 25, 2023, https://www.politico.com/news/2023/07/25/ftc-lawsuit-break-up-amazon-00108130
Lina Khan, “Amazon’s Antitrust Paradox,” Yale Law Journal, Vol. 126, No. 3, January 2017, https://www.yalelawjournal.org/issue/issue/volume-126-issue-3-january-2017.
“Federal Trade Commission Fiscal Year 2023 Congressional Budget Justification,” U.S. Federal Trade Commission, https://www.ftc.gov/system/files/ftc_gov/pdf/P859900FY23CBJ.pdf.
Dan Papscun, “FTC Lawyers Leave at Fastest Rate in Years as Khan Sets New Tone,” Bloomberg Law, March 16, 2023, https://news.bloomberglaw.com/antitrust/senior-ftc-staff-departures-spike-as-ambitious-agenda-looms.
“A Brief Overview of the Federal Trade Commission's Investigative, Law Enforcement, and Rulemaking Authority,” U.S. Federal Trade Commission, May 2021, https://www.ftc.gov/about-ftc/mission/enforcement-authority.
“15 U.S. Code § 49 - Documentary evidence; depositions; witnesses,” Cornell Law School Legal Information Institute, https://www.law.cornell.edu/uscode/text/15/49.
Nick Oberheiden, “Tips for Responding to an FTC Civil Investigative Demand (CID),” National Law Review, September 8, 2022, https://www.natlawreview.com/article/tips-responding-to-ftc-civil-investigative-demand-cid
Premerger Notification Office Staff, “HSR threshold adjustments and reportability for 2023,” U.S. Federal Trade Commission, February 16, 2023, https://www.ftc.gov/enforcement/competition-matters/2023/02/hsr-threshold-adjustments-reportability-2023.
Anirban Sen and Diane Bartz, “Analysis: Dealmakers grapple with unprecedented U.S. challenge to mergers,” Reuters, December 27, 2022, https://www.reuters.com/markets/deals/dealmakers-grapple-with-unprecedented-us-challenge-mergers-2022-12-27; Malcolm Coate, “Merger Analysis in the Courts,” U.S. Federal Trade Commission, August 1994, https://www.ftc.gov/sites/default/files/documents/reports/merger-analysis-courts/wp207.pdf.
Nick Statt and Russell Brandom, “The FTC is suing Facebook to unwind its acquisitions of Instagram and WhatsApp,” The Verge, December 9, 2020, https://www.theverge.com/2020/12/9/22158483/facebook-antitrust-lawsuit-anti-competition-behavior-attorneys-general
The full amended complaint from August 2021 can be read here: https://www.ftc.gov/system/files/documents/cases/ecf_75-1_ftc_v_facebook_public_redacted_fac.pdf
Lauren Feiner and Salvador Rodriguez, “FTC and states sue Facebook, could force it to divest Instagram and WhatsApp,” CNBC, December 9, 2020, https://www.cnbc.com/2020/12/09/ftc-and-several-states-launch-antitrust-lawsuits-against-facebook.html
Brian Fung, “Federal appeals court tosses state antitrust suit seeking to break up Meta,” CNN, April 27, 2023, https://edition.cnn.com/2023/04/27/tech/meta-federal-appeals-court-antitrust-suit/index.html
The full amended complaint from August 2021 can be read here: https://www.ftc.gov/system/files/documents/cases/ecf_75-1_ftc_v_facebook_public_redacted_fac.pdf
Josh Sisco, “FTC readies lawsuit that could break up Amazon,” Politico, July 25, 2023, https://www.politico.com/news/2023/07/25/ftc-lawsuit-break-up-amazon-00108130
Ibid.
See the following FTC press releases for example: https://www.ftc.gov/news-events/news/press-releases/2023/05/ftc-doj-charge-amazon-violating-childrens-privacy-law-keeping-kids-alexa-voice-recordings-forever; https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-takes-action-against-amazon-enrolling-consumers-amazon-prime-without-consent-sabotaging-their
Cat Zakrzewski, “FTC investigates OpenAI over data leak and ChatGPT’s inaccuracy,” The Washington Post, July 13, 2023, https://www.washingtonpost.com/technology/2023/07/13/ftc-openai-chatgpt-sam-altman-lina-khan/
Ibid.
“FTC Will Require Microsoft to Pay $20 million over Charges it Illegally Collected Personal Information from Children without Their Parents’ Consent,” U.S. Federal Trade Commission, June 5, 2023, https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-will-require-microsoft-pay-20-million-over-charges-it-illegally-collected-personal-information.
“New Analysis Finds Consumers Reported Losing More than $1 Billion in Cryptocurrency to Scams since 2021,” U.S. Federal Trade Commission, June 3, 2022, https://www.ftc.gov/news-events/news/press-releases/2022/06/new-analysis-finds-consumers-reported-losing-more-1-billion-cryptocurrency-scams-2021.
Katherine Johnson, “Objection By Federal Trade Commission to Debtors’ Third Amended Joint Plan,” U.S. Federal Trade Commission, February 22, 2023, https://cases.stretto.com/public/x193/11753/PLEADINGS/1175302222380000000049.pdf; Nikhilesh De, “FDIC Probing Voyager Claims It Was Insured by Regulator,” CoinDesk, July 7, 2022, https://www.coindesk.com/policy/2022/07/07/fdic-probing-voyager-claims-it-was-insured-by-regulator-report.
Lesley Fair, “Crypto platform Celsius feels the heat from FTC lawsuit alleging unfair and deceptive practices,” U.S. Federal Trade Commission, July 13, 2023, https://www.ftc.gov/business-guidance/blog/2023/07/crypto-platform-celsius-feels-heat-ftc-lawsuit-alleging-unfair-deceptive-practices.
“FTC Reaches Settlement with Crypto Platform Celsius Network; Charges Former Executives with Duping Consumers into Transferring Cryptocurrency into their Platform and then Squandering Billions in User Deposits,” U.S. Federal Trade Commission, July 13, 2023, https://www.ftc.gov/news-events/news/press-releases/2023/07/ftc-reaches-settlement-crypto-platform-celsius-network-charges-former-executives-duping-consumers.
“Promoters of Deceptive Chain Referral Schemes Involving Cryptocurrencies Agree to Settlement with FTC,” U.S. Federal Trade Commission, August 22, 2019, https://www.ftc.gov/news-events/news/press-releases/2019/08/promoters-deceptive-chain-referral-schemes-involving-cryptocurrencies-agree-settlement-ftc.
Leah Nylen, “DOJ Gets Conviction in First Criminal Monopoly Case in Decades,” Bloomberg News, October 31, 2022, https://www.bloomberg.com/news/articles/2022-10-31/doj-gets-conviction-in-first-criminal-monopoly-case-in-decades
Sheelah Kolhatkar, “Lina Khan’s Battle to Rein in Big Tech,” The New Yorker, November 29, 2021, https://www.newyorker.com/magazine/2021/12/06/lina-khans-battle-to-rein-in-big-tech.
Sheelah Kolhatkar, “How Elizabeth Warren Came Up With a Plan to Break Up Big Tech,” The New Yorker, August 20, 2019, https://www.newyorker.com/business/currency/how-elizabeth-warren-came-up-with-a-plan-to-break-up-big-tech.
Eric Mogilnicki and Melissa Malpass, “The First Year of the Consumer Financial Protection Bureau: An Overview,” The Business Lawyer, Vol. 68, February 2013, https://web.archive.org/web/20131017060330/http://www.wilmerhale.com/uploadedFiles/WilmerHale_Shared_Content/Files/PDFs/TBL-mogilnicki-malpass-2013.pdf; Sheelah Kolhatkar, “Lina Khan’s Battle to Rein in Big Tech,” The New Yorker, November 29, 2021, https://www.newyorker.com/magazine/2021/12/06/lina-khans-battle-to-rein-in-big-tech.
Jason Abbruzzese, “Elizabeth Warren calls to break up Facebook, Google and Amazon,” NBC News, March 8, 2019, https://www.nbcnews.com/tech/tech-news/elizabeth-warren-calls-break-facebook-google-amazon-n980911.
Leah Nylen, “Huge win for progressives as Lina Khan takes helm at FTC,” Politico, June 15, 2021, https://www.politico.com/news/2021/06/15/khan-confirm-ftc-494609
Will Weissert, “Elizabeth Warren’s new role: Key Joe Biden policy adviser,” AP News, July 21, 2020, https://apnews.com/article/virus-outbreak-joe-biden-ap-top-news-politics-election-2020-ef689a89b4ce8361001b3cb55faa6f2b.
Zachary Goldfarb, “Elizabeth Warren was told to stay quiet, but she didn’t – and it’s paying off,” The Washington Post, December 14, 2014, https://www.washingtonpost.com/news/wonk/wp/2014/12/14/elizabeth-warren-is-changing-washington-without-giving-up-her-outside-status.
Josh Sisco, “Republican FTC Commissioner Noah Phillips to step down,” Politico, August 8, 2022, https://www.politico.com/news/2022/08/08/ftc-commissioner-noah-phillips-step-down-00050293.
“FTC Chair Lina Khan Faces Republican Scrutiny Over Budget Increase,” PYMNTS, uly 13, 2023, https://www.pymnts.com/news/regulation/2023/ftc-chair-lina-khan-faces-republican-scrutiny-over-budget-increase.
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“15 U.S. Code § 41 - Federal Trade Commission established; membership; vacancies; seal,” Cornell Law School Legal Information Institute, https://www.law.cornell.edu/uscode/text/15/41.
“Fitzgerald Introduces Fair and Balanced FTC Act,” Office of Scott Fitzgerald, May 25, 2023, https://fitzgerald.house.gov/media/press-releases/fitzgerald-introduces-fair-and-balanced-ftc-act.
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Sheelah Kolhatkar, “Lina Khan’s Battle to Rein in Big Tech,” The New Yorker, November 29, 2021, https://www.newyorker.com/magazine/2021/12/06/lina-khans-battle-to-rein-in-big-tech.
Eleanor Hudson Callaway, “White House Announces Nominees for FTC,” JD Supra, July 13, 2023, https://www.jdsupra.com/legalnews/white-house-announces-nominees-for-ftc-7890628.
“The Antitrust Agenda: With the FTC Set to Have Tow Open Republican Seats, Health of Senate Minority Leader McConnell Looms Large; Vedova Demands Compliance with HSR Form,” The Capital Forum, April 3, 2023, https://thecapitolforum.com/the-antitrust-agenda-with-ftc-set-to-have-two-open-republican-seats-health-of-senate-minority-leader-mcconnell-looms-large-vedova-demands-compliance-with-hsr-form.
Dan Papscun, “FTC Lawyers Leave at Fastest Rate in Years as Khan Sets New Tone,” Bloomberg Law, March 16, 2023, https://news.bloomberglaw.com/antitrust/senior-ftc-staff-departures-spike-as-ambitious-agenda-looms.
Nancy Scola, “Lina Khan Isn’t Worried About Going Too Far,” New York Magazine, October 27, 2021, https://nymag.com/intelligencer/article/lina-khan-ftc-profile.html.
“Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act,” U.S. Federal Trade Commission, November 10, 2022, https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.
The Editorial Board, “Khan Rewrites the Merger Rulebook,” The Wall Street Journal, July 2, 2023, https://www.wsj.com/amp/articles/lina-khan-federal-trade-commission-antitrust-merger-filing-requirements-8eaaec94.
Chelsey Cox, “FTC Chair Lina Khan refused to sit out agency’s case against Meta despite ethics concerns, report says,” CNBC, June 16, 2023, https://www.cnbc.com/2023/06/16/ftc-chair-lina-khan-refused-to-sit-out-meta-case.html.
Brody Mullins and Rebecca Ballhaus, “Ethics Official Owned Meta Stock While Recommending FTC Chair Recuse Herself From Meta Case,” The Wall Street Journal, June 30, 2023, https://www.wsj.com/articles/ethics-official-owned-meta-stock-while-recommending-ftc-chair-recuse-herself-from-meta-case-8582a83b.
Jeff Hauser and Eleanor Eagan, “Big Tech’s Attacks on Biden’s Anti-Monopoly Regulators Are a Joke,” The New Republic, September 1, 2021, https://newrepublic.com/article/163496/lina-khan-jonathan-kanter-monopoly.
Irina Ivanova, “The feds want to break up Facebook. Good luck with that.,” CBS News, August 27, 2021, https://www.cbsnews.com/news/facebook-antitrust-case-wall-street/
Samuel Weinstein, “Understanding the DOJ’s Decision To Seek a Jury Trial in the Google Ad Tech Case,” ProMarket, April 26, 2023, https://www.promarket.org/2023/04/26/understanding-the-dojs-decision-to-seek-a-jury-trial-in-the-google-ad-tech-case/
The original complaint under Trump’s FTC did not demand a jury trial, nor did the amended complaint under Lina Khan. It is unclear if this was deliberate, or an artifact of legal conventions that would prevent demanding a jury trial if an original complaint did not do so. It is also unclear whether the FTC could reasonably demand a jury trial at this late stage of litigation and whether the court would exercise its discretion to allow one. Bismarck Analysis is not a law firm and no licensed attorneys worked on this Brief. This analysis should not be construed to constitute expert legal opinion or advice, which may itself be divided on any relevant legal questions raised.