
By Sean Heather, Chamber of Commerce
Prior to her ascension to chair the Federal Trade Commission, Lina Khan gained popularity in progressive legal circles for her criticism of the popular American retailer Amazon. Her 2017 article in the Yale Law Review, “Amazon’s Antitrust Paradox” not only focused on the titular retailer but also sought to counter the longstanding pro-consumer approach to enforcement writ large. Chair Khan has a long professional history focused on scrutinizing Amazon. For that reason, it is troubling that the agency she oversees, the Federal Trade Commission (FTC), appears to be disregarding traditional due process norms when engaging with the company.
On June 21st, the FTC announced a lawsuit against Amazon for what the agency calls “non-consensual subscriptions and cancellation trickery.” The lawsuit raises questions about whether the agency is demanding a “perfect” signup and cancellation process, substituting the agency’s own judgment about how Amazon should manage its interactions with its customers. Amazon will now have to defend its actions and a court will decide whether the evidence is sufficient to find a law violation.
For its part, Amazon’s Prime service has proven widely popular among consumers, so it is far from clear that there exists a deep persistent pattern of consumer harm emanating from the company. What is interesting about this case is how we got here. Amazon’s public statement in response to the FTC filing its complaint, in part, stated:
“We also find it concerning that the FTC announced this lawsuit without notice to us, in the midst of our discussions with FTC staff members to ensure they understand the facts, context, and legal issues, and before we were able to have a dialog with the Commissioners themselves before they filed a lawsuit. While the absence of that normal course engagement is extremely disappointing, we look forward to proving our case in court.“
Several things jumped out from this statement. Why did the FTC spring the lawsuit on Amazon as a surprise? Moves to litigate by surprise are the kind of tactic used by the FTC in severe situations, often fraud cases where the agency is concerned that prior notice will result in asset dissipation and document destruction. It is wholly unnecessary in routine cases where the defendant is working in good faith to resolve the issue at hand. Further, without any forewarning of the lawsuit, Amazon was prevented from fully being able to explain itself to the Commissioners, a fundamental due process right that is routinely afforded even to those who are being accused of engaging in hard core fraud.
Featured News
Court Order Temporarily Halts U.S. Consumer Financial Protection Bureau Layoffs
Feb 16, 2025 by
CPI
Nokia Poised to Gain EU Approval for $2.3 Billion Infinera Acquisition
Feb 16, 2025 by
CPI
Turkey Fines Frito-Lay in Antitrust Crackdown
Feb 16, 2025 by
CPI
Advances Bill to Strengthen Antitrust Enforcement Through AI
Feb 16, 2025 by
CPI
Intel Faces Potential Breakup as Broadcom and TSMC Explore Deals
Feb 16, 2025 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – International Criminal Enforcement
Jan 23, 2025 by
CPI
The Antitrust Division’s Recent Work to Combat International Cartels
Jan 23, 2025 by
Emma Burnham & Benjamin Christenson
Information Sharing: The New Frontier of U.S. Antitrust Enforcement
Jan 23, 2025 by
Brian P. Quinn, Casey Kovarik & Michael Tubach
The Key Role of Guidelines on Exchanges of Information Among Competitors and the Divergent Transatlantic Paths
Jan 23, 2025 by
Rosa Abrantes-Metz & Albert Metz
Leniency, Whistleblowers, and Compliance
Jan 23, 2025 by
Richard Powers, Tara O’Malley & Cory Gordon