FTC Antitrust Suit Against Amazon Is the Latest to Lack Transparency

It began as an avant-garde crusade in the Yale Law Journal. Now Federal Trade Commission chair Lina Khan has made the long-awaited announcement that the agency – along with 17 states – has filed an antitrust suit against online-retailing behemoth Amazon. The suit charges Amazon with essentially cheating its customers, rivals, and the companies that sell items on its marketplace.

As a student at Yale Law School in 2017, Kahn wrote an article entitled “Amazon’s Antitrust Paradox.” Kahn argued that Amazon transformed from being a simple retailer to a tech “titan” that positioned itself as the center of e-commerce and a provider of essential infrastructure for businesses and web hosting — all without facing antitrust scrutiny.

Observers have anticipated the government’s complaint, filed in the U.S. District Court for the Western District of Washington, since Khan was sworn in as FTC chair in 2021. However, after such a long lead time and ample news coverage, they likely weren’t expecting a 172-page document so heavily redacted that it contained very little new information. So much of the complaint is redacted, in fact, that it is “like a novel that has every third page torn out,” according to columnist Martin Peers of The Information.

“To be fair, there seems to be some juicy stuff in the complaint – for example, references to an apparently nefarious pricing system called Project Nessie – but that material was almost entirely blacked out,” Peers wrote.

Likewise, Maureen Tkacik of The American Prospect quipped that the FTC had filed “a 172-page compendium of tantalizing black bars purporting to allege that Amazon is an illegal monopoly.” The complaint against Amazon was devoid of numbers that illustrate the company’s true size and market power, Tkacik added.

Notably, the Amazon lawsuit isn’t the only blockbuster antitrust case in which heightened secrecy is a concern. The trial in the Justice Department’s case against Google is now entering its fourth week in court, and according to the New York Times, it is “shaping up to be perhaps the most secretive antitrust trial of the last few decades.”

A lack of transparency and discussions about confidentiality have taken center stage at the trial. Apple and Microsoft, which are both involved in the case, have argued alongside Google that the landmark trial should remain largely closed off to the public. Several antitrust experts told the Times that the proceedings are “unusually opaque,” with one professor calling the secrecy surrounding the proceedings “unprecedented in antitrust trials.”

Looking ahead, secrecy could become an issue in several high-profile cases and trials, including:

• the FTC’s antitrust case against tech giant Meta, seeking to force the company to spin off subsidiaries Instagram and WhatsApp;
• a civil antitrust suit filed by the Justice Department and attorney generals from eight states against Google over its ad tech business; and
• a potential Justice Department antitrust complaint against Apple.