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Lina Khan

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For Indo-Canadian film director, see Lena Khan.
Lina Khan
Official portrait, 2021
Chair of the Federal Trade Commission
Incumbent
Assumed office
June 15, 2021
PresidentJoe Biden
Preceded byRebecca Slaughter (acting)
Commissioner of the Federal Trade Commission
Incumbent
Assumed office
June 15, 2021
PresidentJoe Biden
Preceded byJoseph Simons
Personal details
Born (1989-03-03) March 3, 1989 (age 35)
London, England
CitizenshipBritish[1]
American
Political partyDemocratic[2][3]
Spouse
Shah Rukh Ali
​
(m. 2018)​
Children1
EducationWilliams College (BA)
Yale University (JD)
SignatureLina Khan signature

Lina M. Khan (born March 3, 1989) is a British-born American legal scholar who has served as chair of the Federal Trade Commission (FTC) since 2021. She is also an associate professor of law at Columbia Law School.

While a student at Yale Law School, she became known for her work in antitrust and competition law in the United States after publishing the influential essay "Amazon's Antitrust Paradox".[4]

President Joe Biden nominated Khan to the FTC in March 2021, and after her confirmation she became the youngest FTC chair ever in June 2021.[5][6]

Early life and education

Khan was born on March 3, 1989, in London, to a British family of Pakistani origin.[7][8] Khan grew up in Golders Green in the London Borough of Barnet. Her parents, a management consultant and an employee of Thomson Reuters, moved to the United States when she was 11 years old. The family settled in Mamaroneck, New York, where she and her two siblings attended public school.[9][10]

At Mamaroneck High School, Khan was involved in the student newspaper.[11] After high school, Khan studied political science at Williams College in Massachusetts. She was also an undergraduate visiting student at Exeter College, Oxford.[12] Khan served as editor of the Williams College student newspaper and wrote her senior thesis on Hannah Arendt. She graduated in 2010 with a Bachelor of Arts.

Advocacy and academic career

From 2010 to 2014, Khan worked at the New America Foundation, where she engaged in anti-monopoly research and writing for Barry Lynn at the Open Markets Program.[9] Lynn was looking for a researcher without a background in economics, and he began critiquing market consolidation with Khan's help.[9]

As a result of her work at the Open Markets Institute, Khan was offered a reporting position at The Wall Street Journal, where she would have covered commodities. During the same period, Khan was offered admission into Yale Law School. Describing it as "a real 'choose the path' moment", Khan ultimately chose to enroll at Yale.[9]

Khan served as a submissions editor for the Yale Journal on Regulation. She went on to graduate from Yale in 2017 with a Juris Doctor degree.[7][13]

"Amazon's Antitrust Paradox"

Khan in 2016, speaking on a panel about Amazon and antitrust law

In 2017, during her third year at Yale Law School, the Yale Law Journal published Khan's student article "Amazon's Antitrust Paradox".[14] The article made a significant impact in American legal and business circles, and The New York Times described it as "reframing decades of monopoly law".[7]

In the article, Khan argued that the current American antitrust law framework, which focuses on keeping consumer prices down, cannot account for the anticompetitive effects of platform-based business models such as that of Amazon. The title of Khan's piece was a reference to Robert Bork's 1978 book The Antitrust Paradox, which established the consumer-welfare standard that Khan critiqued.[9] She proposed alternative frameworks for antitrust policy, including "restoring traditional antitrust and competition policy principles or applying common carrier obligations and duties."[14][9]

For "Amazon's Antitrust Paradox", Khan won the Antitrust Writing Award for "Best Academic Unilateral Conduct Article" in 2018,[15] the Israel H. Peres Prize by Yale Law School,[15] and the Michael Egger Prize from the Yale Law Journal.[15]

Reception

The article was met with both acclaim and criticism. As of September 2018, it received 146,255 hits, "a runaway best-seller in the world of legal treatises," according to The New York Times.[7] Makan Delrahim, then serving as Assistant Attorney General for the Antitrust Division under Donald Trump, praised Khan for her "fresh thinking on how our legal tools apply to new digital platforms".[16]

Joshua Wright, who served on the FTC from 2013 to 2015, derided her work as "hipster antitrust" and argued it "reveal[ed] a profound lack of understanding of the consumer welfare model and the rule of reason framework."[17] Herbert Hovenkamp wrote that Khan's claims are "technically undisciplined, untestable, and even incoherent", and that her work "never explains how a nonmanufacturing retailer such as Amazon could ever recover its investment in below cost pricing by later raising prices, and even disputes that raising prices to higher levels ever needs to be a part of the strategy, thus indicating that it is confusing predation with investment."[18]

Open Markets Institute and Columbia Law School

After graduating from law school, Khan worked as legal director at the Open Markets Institute. The institute split from New America after Khan and her team criticized Google's market power, prompting pressure from Google, a funder of New America.[19] During her time at OMI, Khan met with Senator Elizabeth Warren to discuss anti-monopolistic policy ideas.[20]

Initially planning to clerk for Judge Stephen Reinhardt on the Ninth Circuit Court of Appeals, Khan joined Columbia Law School as an academic fellow, where she pursued research and scholarship on antitrust law and competition policy, especially relating to digital platforms.[15][21] She published “The Separation of Platforms and Commerce” in the Columbia Law Review, making the case for structural separations that prohibit dominant intermediaries from entering lines of business that place them in direct competition with the businesses dependent on their networks.[22] In July 2020, Khan joined the school's faculty as an associate professor of law.[23]

Khan has described herself as belonging to the New Brandeis movement, a political movement that seeks a revival in antitrust enforcement.[24]

Early government service

In 2018, Khan worked as a legal fellow at the Federal Trade Commission in the office of Commissioner Rohit Chopra.[25] In 2019, she began serving as counsel to the House Judiciary Committee's Subcommittee on Antitrust, Commercial, and Administrative Law, where she led the congressional investigation into digital markets.[26]

Chair of the FTC

See also: Federal Trade Commission § Biden administration

On March 22, 2021, Joe Biden announced that he was nominating Khan to be a commissioner of the Federal Trade Commission to a term ending September 26, 2024.[5][27][28] On June 15, 2021, her nomination was confirmed by the Senate by a vote of 69 to 28.[5][29] Khan was confirmed with bipartisan support, mainly attributed to her "influential anti-Amazon views" being widely reflected in Congress.[30] Biden then appointed her chairperson of the FTC.[31] Upon taking office, Khan became the third Asian-American to serve on the FTC, after Dennis Yao (who served from 1991 to 1994) and her former boss Rohit Chopra (who served from 2018 to 2021).[32]

Following her appointment as chairperson, both Amazon[33] and Facebook[34] filed petitions with the FTC seeking her recusal from investigations of the companies, suggesting that her past criticism of the companies left her unable to be impartial. However, according to legal scholar Eleanor Fox, the standard for recusal is very high and unlikely to be met for Khan.[35] Senator Elizabeth Warren and other supporters of Khan argued that the recusal demands amount to an attempt by these companies to intimidate Khan in order to curtail regulatory scrutiny.[36] According to leaked documents, the FTC's Designated Agency Ethics Official (DAEO), Lorielle Pankey, did not believe Khan had violated any ethical standards,[37] but still recommended that she recuse herself from the case with Meta Platforms to avoid the appearance of bias; this recommendation was rejected by Khan and the FTC.[38] The official who made the recommendation was later revealed to have owned Meta stock at that time, prompting concerns about Pankey's own conduct.[39] In response, Khan and the FTC released a unanimous statement in support of Pankey.[40] Earlier in February 2023, Republican FTC Commissioner Christine Wilson announced her plan to resign from the agency citing her opposition to Khan's leadership, including her refusal to recuse from the FTC lawsuit against Meta.[41] In July 2023, Republicans had her testify before the House of Representatives Judiciary Committee.[42][43] Democrats on the committee defended Khan and the actions of the agency, arguing that she was taking steps that protected user privacy.[44]

In April 2024, the FTC issued a landmark regulation that banned the enforcement of existing non-compete agreements on employees other than senior executives, and prohibited new non-compete agreements against all categories of employees. The non-compete regulation was struck down in August 2024 by a federal court, which ruled that it was an overreach of statutory authority on the part of the FTC to issue such a regulation and that the regulation was arbitrary and capricious.[45]

Khan has been outspoken about potential perils from business monopolies[46] and expanding anti-trust regulation and enforcement[47] among merger filings, of which only two percent receive added scrutiny.[48] Under Khan's leadership, the FTC voted unanimously, in 2021, to enforce the right to repair as policy and to consider action against companies that limit the type of repair work that can be done at independent repair shops;[49] has pursued lawsuits against companies to lower drug prices,[50] including for insulin[51] and inhalers;[52] and adopted the "click to cancel" rule, in 2024, for consumers to efficiently end subscription services.[53]

Under Khan, the FTC has won more than 90% of overall merger litigation. Wins include matters in which a preliminary injunction was granted by a district court, administrative proceedings were resolved in favor of the FTC, the parties abandoned their deal after the FTC filed a legal document known as a complaint in court, or the FTC and the parties reached a settlement after a complaint was filed that resolved competitive concerns. Those victories include Illumina/Grail (abandonment),[54] Heidelberg/Keystone (abandonment),[55] Nvidia/Arm (abandonment), Lockheed/Aerojet (abandonment)[56] Lifespan/CNE (abandonment),[57] HCA/Steward (abandonment),[58] Barnabas/St. Peters (abandonment),[59] ICE/Black Knight (settlement),[60] Amgen/Horizon (settlement),[61] IQVIA/PMI (preliminary injunction),[62] John Muir/Tenet (abandonment),[63] Sanofi/Maze (abandonment),[64] Novant/CHS (preliminary injunction),[65] and Tapestry/Capri (preliminary injunction).[66] Hedge funds have had difficulty betting against the FTC due to its track record of winning cases.[67] Khan's litigation has led to some businesses dropping attempted mergers and acquisitions, such as Nvidia's attempted acquisition of Arm Holdings in 2022.[68][69] The FTC under Khan has also sought to block the Kroger's attempt to merge with Albertsons, arguing that the merger could lead to higher prices for groceries, and worse pay and benefits for workers [70].

Agency morale under Khan

Under Khan, FTC employees initially reported declines in metrics such as employee satisfaction and faith in leadership, according to data from the 2022 Federal Employee Viewpoint Survey conducted by the Office of Personnel Management. Prior to Khan's tenure, the FTC consistently ranked at the top of federal agencies in workplace rankings in both Democratic and Republican administrations. 94.3% of FTC staff had favorable views of senior leadership in 2020, declining to 51.7% in 2021, and to 46.6% in 2022. After Khan's appointment, the FTC switched from ranking first in favorable views of senior leadership among federal agencies to first in unfavorable views.[71][72][73][74]

FTC officials have attributed employee initial dissatisfaction under Khan to a lack of a clear strategy on achieving objectives, a lack of knowledge on agency operations, and disrespect and sidelining of career staff. One of Khan's first acts at the FTC, a ban on public speaking for FTC staff, was widely unpopular with employees and retracted in 2022 with an apology.[74][75][76]

Khan said it was a priority to improve staff morale following the initial Federal Employee Viewpoint Survey results during congressional testimony in July, 2023. [77] Khan also strongly defended her career employees from an attempt by Rep. Jim Jordan to "intimidate and harass" the agency’s career staff after Jordan threatened to subpoena a number of the rank-and-file attorneys. [78]

Employee satisfaction rebounded and in November 2023 it was reported that morale and satisfaction has significantly improved from 2022 according to the annual workplace survey cited.[79] These results indicated that the FTC has reversed more than half of its initial decline in morale. [80] The FTC was ranked in the top 10 midsize federal agencies in 2023 with 11 rating categories in the top 3 for midsize agencies.[81] An additional improvement in morale and satisfaction scores was reported in November 2024, continuing an upward trend.[82]

Legacy and influence

In 2018 Politico described Khan as "a leader of a new school of antitrust thought" as part of its "Politico 50" list of influential thinkers.[15] New York magazine said she was "indisputably the most powerful figure in the anti-monopoly vanguard".[83] She was also listed as one of Foreign Policy's "Global Thinkers,"[84] Prospect's "Top 50 Thinkers,"[85] Wired's WIRED25,[86] the National Journal 50,[87] Washingtonian's list of most influential women,[88] and Time's "Next Generation Leaders."[89]

Khan's practices at the FTC have been met with bipartisan praise as well as some criticism. Former Paul Weiss antitrust and securities defense counsel Ankush Khadori of New York wrote in December 2023 that failed lawsuits against Meta and Microsoft led to reduced morale and high attrition among FTC employees.[74] However, Khan has gained praise for her tactics from members of both the Democratic and Republican parties. Republican Senator and 2024 Republican Vice Presidential nominee, JD Vance from Ohio cited Khan's campaigns against large technology companies as a success for antitrust efforts in the US, beliefs echoed by former Democratic representative David Cicilline, who expressed his confidence that Khan would ultimately prevail against large companies.[90][91] Former colleague Matt Stoller described Khan as the best chair the FTC has ever had.[68]

Personal life

Khan was born in London to Pakistani parents who immigrated to the United States in 2000.[7] She is married to Shah Rukh Ali, a cardiologist at Columbia University in Manhattan.[7] In January 2023, Khan gave birth to her first child.[92]

Bibliography

  • Khan, Lina M. (January 2017). "Amazon's Antitrust Paradox". Yale Law Journal. 126 (3): 710–805. Archived from the original on April 23, 2021.
  • Khan, Lina (March 1, 2018). "The New Brandeis Movement: America's Antimonopoly Debate". Journal of European Competition Law & Practice. 9 (3): 131–132. doi:10.1093/jeclap/lpy020.
  • Khan, Lina (June 4, 2018). "The Ideological Roots of America's Market Power Problem". The Yale Law Journal Forum. 127. Archived from the original on April 20, 2021.
  • Khan, Lina (July 2018). "Download Sources of Tech Platform Power" (PDF). Georgetown Law Technology Review. 2: 325–334.
  • Khan, Lina (May 2019). "The Separation of Platforms and Commerce" (PDF). Columbia Law Review. 119 (4): 973–1098. Archived (PDF) from the original on March 10, 2021.
  • Khan, Lina (July 2019). "Competition Issues in Digital Markets". Competition Law & Policy Debate. 5 (2): 66–70. doi:10.4337/clpd.2019.02.09. ISSN 2405-481X.
  • Khan, Lina (Winter 2019). "Comment on Daniel A. Crane: A Premature Postmortem on the Chicago School of Antitrust". Business History Review. 93 (4): 777–779. doi:10.1017/S000768051900151X. S2CID 214322820.
  • Khan, Lina (March 2020). "The End of Antitrust History Revisited [reviews]" (PDF). Harvard Law Review. 133 (5): 1655–1683. Archived (PDF) from the original on August 18, 2020.

Co-authored works

References

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