Dive Brief:

• Lina Khan, President Biden's pick as commissioner and chair of the Federal Trade Commission, has been sworn in and is set to serve a term ending in September 2024. 
• Khan served as counsel for the House of Representatives antitrust subcommittee that, last year, issued a scathing report on big technology firms' — specifically Amazon, Google, Facebook and Apple — dominant role in the economy and monopoly powers.
• As a law student, Kahn authored an influential paper outlining alleged antitrust concerns around Amazon's business and market conduct. Amazon is reportedly under investigation by the FTC and was recently sued by Washington, D.C.'s attorney general. 

Dive Insight:

Over the past four years, much was made about former President Trump's vocal beef with Amazon founder Jeff Bezos and its potential impact on the e-commerce giant. Among other incidents, the former president tweeted about Amazon and what he alleged was a "huge antitrust problem."

Antitrust enforcement is, of course, supposed to be divorced from bare-knuckle politics and vendettas, and driven, instead, by law, facts and analysis. In that respect, Khan arguably poses a greater threat to Amazon and other tech firms than Trump ever did.

Her paper about Amazon included both a deep analysis of Amazon and a frontal intellectual attack on legal assumptions and precedents around esoteric antitrust matters such as vertical monopolies and predatory pricing.

Those precedents go back decades, but not as far back as America's antitrust laws themselves. Khan and a cohort of legal thinkers, who have grown quickly in their influence, have argued that antitrust enforcement has been distorted. Specifically, they point to a legal philosophy that gained power under the Reagan Administrations and survived under both Republican and Democrat governments. In the years since, the government has relaxed its approach and has not broken up a company in decades. 

The elections of both Trump and Biden may spell an end to that era. Under Trump, antitrust enforcers at the FTC and Department of Justice filed antitrust lawsuits against Google and Facebook and reportedly began investigating Amazon. And now Kahn's appointment as chair of the FTC — the youngest ever — makes clear that Democrats are ready for more scrutiny on and potential action against powerful companies. Moreover, the Democrat-led House introduced a bill last week that could in effect force Amazon and other tech companies to split up.

Amazon has long denied that it is a monopoly or has violated antitrust laws. It has a small or minority market share in many product categories and, for now, its e-commerce revenue in North America is smaller than Walmart's U.S. sales. Aspiring to be the "everything store," Amazon in the past has put forward its relatively small share of the total multi-trillion-dollar retail industry as proof it is not a monopoly. 

Khan, in her paper, looked at how Amazon for years absorbed losses as it grew its e-commerce market share, until today it is by far the leading player in online retail. In 2017, she said of Amazon in an interview with Retail Dive: "It's transformed 21st century retail and 21st-century markets. But I think it is important to separate the way Amazon has introduced new technologies and the ways it's potentially abused its power. These things are not one and of the same. We as a society can live in a world of internet commerce without resigning ourselves to all that commerce being mediated by Amazon." 

Since then, the House report that Khan helped author accused Amazon of wielding monopoly power and exploiting third-party sellers on its platform. Amazon dismissed the report at the time as being based on "flawed regulatory ideas" that "rely on the false narrative that Amazon's interests are not aligned" with its third-party sellers."

A harsher government line on Amazon is not the only way retail may be affected by a more aggressive antitrust approach. Google, with its dominance in search and massive online advertising operation, is a key gatekeeper for e-commerce players. Facebook, which has been sued by the FTC, also controls a massive medium for brands and retailers trying to connect with customers.