Federal Trade Commission Chair Lina Khan, recently confirmed after being a noted Big Tech critic, has less than a month to file an amended antitrust complaint against Facebook.
A federal judge earlier this week dismissed two antitrust lawsuits filed by the FTC and a coalition of states that targeted Facebook's acquisition of WhatsApp and Instagram.
Judge James E. Boasberg, an Obama-era nominee, argued the FTC's complaint provided insufficient evidence to prove Facebook controls more than 60% of the market share, as the lawsuit alleges.
"It is almost as if the agency expects the Court to simply nod to the conventional wisdom that Facebook is a monopolist," the judge wrote, The Hill reported.
Boasberg gave the FTC until July 29 to prove its point about Facebook’s market dominance.
"If you are at the agency, remind yourself that it's not a fatal blow. But you do not dismiss it as a trivial concern either," said William Kovacic, a former FTC chairman and current a professor at George Washington University Law School, told The Hill.
"It is damaging to the agency's prestige and to its morale, and it is foreboding of hard things you're going to have to do in order to succeed."
Khan gained support from both conservatives and progressives when she was confirmed by the Senate earlier this month in a 69-28 vote.
Now, the 32-year-old antitrust scholar is working against the clock to provide a win against the tech giant.
"It's a challenging situation to be in. It's the biggest case the FTC has had in decades, it's right in her core area, and it's right as she arrives,” Jason Furman, a professor at the Harvard Kennedy School and former economics adviser to then-President Obama, told The Hill.
Khan previously worked as an aide to the House Judiciary antitrust panel’s investigation into the market power of U.S. tech giants. That investigation recommended legislative reform that culminated in six bills that seek to give the FTC and Justice Department greater authority to rein the power of the biggest tech companies.
Existing parameters, however, are creating enforcement challenges for the FTC in its case against Facebook.
"As the FTC chair she's tasked with enforcing the law and the current law is old, and is what she's fought so long against. So how she's going to succeed with her goals under the current legal landscape is going to be a really tough road," Amy Brantly, an expert antitrust attorney and founding partner of Kesselman Brantly Stockinger, told The Hill.
Khan and the agency must decide what strategy to use moving forward. An FTC spokesperson told The Hill the agency is "closely reviewing the opinion and asserting the best option forward."
Kovacic said the FTC could both "reformulate" the original charges and add others in an amended complaint, which Facebook likely will seek to dismiss.
That could lead to long litigation for the Khan and the FTC.
"If you were to liken it to a race this is a very long distance event. It is not a 100 meter sprint," Kovacic said.
The FTC instead could file a new complaint in an in-house court, either instead of amending the complaint in federal court or alongside that one, The Hill said.
"The downside obviously to doing that is they'll be fighting on two fronts, and the administrative proceeding lacks some of the teeth [compared to] bringing the case in court," Brantly said.
Many people believe Khan is the right person to take charge against Facebook.
"It's really hard to imagine anyone who is more qualified to use the authorities at the Federal Trade Commission to Big Tech including Facebook, and bring more competition to the market," said Morgan Harper, director of policy and advocacy at the Economic Liberties Project.
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