Amicus briefs urge court to dismiss FTC’s lawsuit against Amazon, warn of vast and severe consequences if the FTC succeeds
As the FTC’s antitrust trial against Amazon gets underway, six influential industry groups have filed detailed amicus briefs advocating the dismissal of the lawsuit. Filing such detailed briefs so early in a trial is highly unusual and underscores the lawsuit’s flawed nature. The briefs emphasize the FTC’s lack of a legitimate legal case and caution that a successful lawsuit will outlaw common industry practices that consumers understand and value.
1. The FTC has no valid legal reason to find anything wrong with Amazon’s subscription process, the Computer & Communications Industry Association, NetChoice, and Chamber of Progress argue. They reiterate that the process actually benefits consumers and note that the FTC “fails to set forth a legal theory by which the Court could find that [Amazon] violated the law.” The brief warns that, if the FTC succeeds in bringing charges with no legal basis, this case “might erode confidence in the nation’s executive agencies.”
2. The FTC is trying to punish Amazon by handing down the standard that they wish existed, not the one that actually exists, the U.S. Chamber of Commerce attests. “This is a quintessential case of attempted regulation by enforcement, and this Court should not permit it.” The Chamber foresees a stifling of business and customer services across America if the FTC succeeds. “Rather than risk aggressive enforcement action, many businesses and individuals will simply cease offering valuable services and marketing options to their customers.”
3. In targeting Amazon Prime’s marketing approach, the FTC “crosses a dangerous line when it comes to the regulation of commercial speech,” notes the Interactive Advertising Bureau. The Bureau cautions that accepting the FTC’s legal theory will have a “chilling effect on legitimate commercial speech.” The FTC is absurdly attempting to “prohibi[t] truthful speech that is too convincing.”
4. The basis of evidence that the FTC provides is enormously troubling and legally unacceptable, the Association of Corporate Counsel observes. The FTC had sought to make Amazon monetarily liable based on their communications with their legal counsel. The FTC’s theory “violates basic principles of due process, attorney-client privilege, and the right to confer with counsel of choice.”
The complete list of briefs is available here.