A showdown between Amazon and government regulators over whether it is overly dominant may soon be coming to a head, with the Federal Trade Commission preparing to sue — and possibly break up — the world’s largest e-commerce company, according to Politico and Bloomberg.
The retailer, which also operates an advertising agency, shipping network, supermarket chain and movie studio, has become a mainstay in Americans’ lives. But its explosive growth, which has made founder Jeff Bezos one of the world’s richest people, has also long spurred calls for the company to be reined in, with consumer activists claiming that the behemoth uses monopolistic practices to preserve its stronghold.
For FTC Chair Lina Khan — who first came to prominence while still in law school by writing a paper arguing that Amazon is a monopoly — an effort to fracture the company would amount to a career-defining throw of the dice. Of late, meanwhile, the FTC has lost battles to block high-profile mergers, including Microsoft’s $68.7 billion purchase of Activision and Meta’s takeover of VR startup Within.
“The point of her article was that traditional antitrust, in the last 40 years, is a very awkward fit for addressing competitive concerns with Amazon, so it kind of makes sense that the FTC has struggled to bring the case,” said Rebecca Haw Allensworth, associate dean for research at Vanderbilt University Law School.
To succeed, an FTC case would need to explain how Amazon’s business practices run afoul of antitrust law first passed a century ago. Here are the arguments the government is likely to bring up in a suit to break up Amazon, according to legal experts.
Platform power
According to Politico, government regulators are homing in on several areas of concern: Amazon’s requirement that third-party sellers don’t sell items cheaper elsewhere; its encouragement of sellers to use Amazon’s shipping and advertising services; and its bundling of services as part of the company’s Amazon Prime shopping club.
More than 60% of Amazon’s sales come from independent sellers that sell their wares through the retailer, and Amazon forbids these businesses from selling items cheaper elsewhere as a condition of hawking using its platform. Guaranteeing low prices sounds like a good thing, since low prices are good for consumers. But they can have negative effects on other platforms, Allenworth said.
“It makes for less competition between the platforms. Now, Amazon doesn’t have to worry that Etsy is going to be undercutting it on these products,” she said.
Washington, D.C., and the state of California have sued Amazon on similar grounds, arguing that its demand for the cheapest prices forces merchants to raise prices elsewhere, harming both sellers and consumers.
“Other online marketplaces cannot effectively compete with Amazon by lowering their fees and commissions because doing so would have no effect on the final consumer price for that product, which is pegged to the Amazon price,” Washington, D.C.’s attorney general argued in its suit. “This artificially raises the price of goods to consumers across the internet above competitive levels and enables Amazon to charge sellers higher commissions and fees than it could in a truly competitive market.”
A judge threw out the District’s case last year, and prosecutors are appealing that dismissal. California’s suit against Amazon is in progress.
Package deal
Another likely focus of the FTC’s complaint, according to reporting from Bloomberg, is that Amazon forces vendors who sell products on its platform to use the company’s logistics services, including shipping, warehouse storage and advertising. A congressional investigation in 2020 concluded that Amazon rewards sellers that use its other services by giving them better placement on its site, including the so-called “Buy Box,” and punishes sellers that don’t use those services by putting their items further down the page.
Demonstrating that this practice, called “tying,” is illegal depends on the government’s ability to prove that its only purpose is to undermine competition.
“It’s defensible if the company can come up with some sort of good explanation for it that doesn’t have to do with crushing its competitors,” Allensworth said. “Is there an efficiency justification for having these things be offered together?”
Unfair treatment?
The government could also consider whether Amazon treats third-party sellers unfairly by giving a boost to identical products that the retailer itself sells, media reports note.
A congressional investigation concluded in 2020 heard testimony from a number of sellers that accused Amazon of giving preference to its own branded products in search results, even when they cost more, and of creating Amazon-owned copies of popular third-party products sold on the platform.
One former seller described being put out of business by the company.
“On at least two different occasions, his company did all the legwork to create a new, top-selling product or product line, as well as creating the product listings, only to have Amazon copy the idea and offer a competing product,” the congressional report found. It also concluded that Amazon could access product data that other sellers could not and that it “can give itself favorable treatment relative to competing sellers.”
Amazon’s so-called “mimic and destroy” approach has drawn criticism, but it may not be illegal, Allensworth noted. “This was a big focus of the congressional investigation into Amazon that Lina Khan was very involved in, but it doesn’t have an obvious antitrust hook — unlike in the European Union where there’s a law about [how to treat] the other sellers on your own platform,” she said.
Amazon is currently disputing its designation by the EU as a large platform that deserves tight regulation.
