This afternoon, Tuesday, June 15, 2021, the Senate confirmed the nomination of Lina Khan to serve as a Federal Trade Commissioner by a 69-28 vote. Once she is sworn in, Democrats will hold a three-member majority of Commission seats. Because she is filling a seat left vacant by former Chair Joseph Simons, Khan's term is set to expire in 2024. Bloomberg News is reporting that President Biden intends to name her as FTC Chairman.
Khan joins the Commission after a brief but vocal career in antitrust law. A graduate of Williams College, Ms. Khan first made waves in the antitrust world when she published her 2017 Yale Law Journal article "Amazon's Antitrust Paradox" while still a law student. After law school, Khan worked for FTC Commissioner Rohit Chopra as a legal advisor before working for the House Judiciary Committee's Subcommittee on Antitrust, Commercial, and Administrative Law. She also served as Counsel to the Majority Staff of the US House of Representatives that drafted in 2020 the "Majority Staff Report and Recommendations" concerning the House's Investigation of Competition in Digital Markets—which contained an in-depth investigation of competition in digital markets and recommended sweeping reforms to purportedly restore competition in the digital economy, strengthen antitrust laws and strengthen antitrust enforcement. Most recently, she served as an associate professor of law at Columbia Law School.
Khan's confirmation will likely cause significant changes in enforcement at the FTC. If named FTC Chairman, she will have a hand in shaping the FTC's enforcement priorities. In addition to shifting the majority to the Democratic Commissioners, Khan will have a platform from which to encourage novel actions and theories of harm in FTC investigations. For example, Khan has proposed that the traditional "consumer welfare standard" of lower prices does not accurately measure whether a firm is exercising monopoly power, particularly in the context of Big Tech. And during her confirmation hearing, she advocated for looking into "hidden gems" in existing legislation to enforce existing laws in new ways and for creating new rules under the FTC's Section 6(b) authority.
Now with three reform-minded democrats and potentially Ms. Khan at the helm, we expect antitrust enforcement at the FTC to take on an expansive approach to merger and conduct enforcement investigations, litigation and remedies. Merger reviews are likely to take longer and contain broader requests for documents, information and testimony. We also expect the FTC to take on a more active role in antitrust rule-making, something that traditionally has been more limited to consumer protection.
Norton Rose Fulbright's antitrust team regularly advises clients facing scrutiny from government authorities, and is ready to help clients navigate the issues of a changing legal climate.