With Bipartisan Support, DOJ Antitrust Nominee Vows Aggressive Enforcement

Jonathan Kanter, a Big Tech critic and former Paul, Weiss, Rifkind, Wharton & Garrison partner, on Wednesday committed to adopting an aggressive antitrust enforcement regime if confirmed to lead the U.S. Justice Department’s (DOJ’s) antitrust division.

At a hearing before the Senate Judiciary Committee, Kanter noted that “market realities” have changed in recent years, requiring a shift in focus of antitrust enforcement across a range of industries. One Republican, Sen. Thom Tillis of North Carolina, pledged to support Kanter’s nomination as assistant attorney general, and other GOP senators appeared receptive to his approach.

“Antitrust laws have to address market realities, and market realities have shifted in dramatic ways just over the last 20 or 30 years,” Kanter said. “And the kinds of harm that can be inflicted on society as a result of concentrations of power [have] also changed. Those harms can embody privacy, can involve the marketplace of ideas, distribution of information, political discourse. And so to be effective, the antitrust laws, in my view, should be enforced in a manner that adapts to those market realities.

“I think there’s a great deal to do,” he said.

Sen. Chuck Grassley, R-Iowa, the committee’s ranking member, said he had a productive conversation with Kanter prior to the hearing and noted that they both have been “forceful critics” of the big technology companies.

Kanter’s hearing was another example of the rare bi-partisan support for reining in major technology companies, a dynamic that was on display a day earlier when a Facebook whistleblower received broad support testifying before a Senate subcommittee. Lawmakers of both parties have drafted antitrust bills designed to give more funding to regulators and limit corporate mergers.

Kanter declined to endorse any specific legislation, saying he didn’t want to get ahead of the Justice Department’s determinations, but said he broadly supported efforts to give more resources to the antitrust division. He said he would want to use extra funding to hire more trial attorneys and analysts with expertise on topics the division is pursuing.

Kanter was pressed by Sen. Mike Lee, R-Utah, on his past criticism of the consumer welfare standard, a traditional focus of antitrust enforcement that advocates have said limits regulators to targeting only behavior that harms consumer prices.

Under questioning from Lee, Kanter conceded that the consumer welfare standard could also encompass things like consumer choice and quality of goods.

Lee also pressed Kanter on whether department officials should apply “value judgments” to antitrust enforcement, criticizing the Federal Trade Commission (FTC) for reportedly asking companies questions about the environmental and social impact of a merger during investigations.

Kanter said individual enforcement actions should be assessed on a “case-by-case basis” centered around whether there were violations of the law.

His confirmation has received support from across the political spectrum. A bi-partisan group of nine former leaders of the antitrust division wrote to the committee last month voicing their support.

Kanter emerged as a progressive favorite for his criticism of the vast market power of major technology companies, especially Google. He has pushed for a rethinking of antitrust enforcement away from a focus on consumer prices, arguing that companies like Google, while free to consumers, are stifling the type of market disruption that antitrust laws are designed to promote.

Sen. Amy Klobuchar, D-Minnesota, one of the most vocal proponents of congressional antitrust action, said Kanter’s nomination “could not be more timely.”

“We are at a critical moment in antirust,” Klobuchar said, introducing Kanter. “There is growing bi-partisan consensus that our country has a major monopoly power problem.”

Kanter is an unlikely progressive star. After leaving the FTC two decades ago, he spent nearly his entire career at big law firms, first at Fried, Frank, Harris, Shriver & Jacobson; then Cadwalader, Wickersham & Taft; and finally at Paul Weiss.

He developed a practice that was unusual for major corporate law firms, representing companies that had complaints about the titans of the technology industry. His long association with Microsoft led him to help build the antitrust case against Google, former colleagues have said. A conflict involving colleagues who represented major platform technology companies led to his departure from Paul Weiss last year. Kanter then launched his own boutique firm focused on antitrust advocacy.

His past work has raised questions about whether he’ll have to recuse himself from the Justice Department’s ongoing case against Google, the most high-profile antitrust lawsuit the department is currently pursuing. He wasn’t asked about the Google case during the hearing.

During his opening statement, Kanter held up the certificate of citizenship that his grandfather received after immigrating to the United States in the 1930s. He said his grandfather, who worked installing plumbing at schools, would inspire his work if he were confirmed to lead the antitrust division.

“Liberty depends on opportunity, and opportunity depends on free, fair, competitive markets. And the antitrust laws play a vital role in preserving these opportunities,” he said.

From: The National Law Journal