Big Tech Tries To Sideline Joe Biden’s Latest Antitrust Enforcer

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Google wants Jonathan Cantor to recuse himself from the DOJ’s antitrust case against the company.

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Google Is asked the justice department For the newly confirmed head of antitrust, Jonathan Kantor, to recuse himself from the agency’s antitrust lawsuit against the company, his past work for companies that oppose the tech giant and his own statements criticizing its practices. reason.

Google’s push to shore up Cantor is part of a broader effort by the largest digital platform companies to fight back against the president. Joe BidenThe appointment of a new generation of antitrust enforcers who are highly critical of big tech companies and antitrust has long been a legal consensus.

Kanter, an antitrust lawyer, was confirmed by the Senate in a bipartisan vote of 68–29 on November 16 to lead the DOJ’s antitrust division. His confirmation completed Biden’s overhaul of the nation’s antitrust regulatory enforcement offices, adding Lena Khan as chairman of the Federal Trade Commission and Tim Wu as technology and competition policy adviser to the National Economic Council.

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These three appointments draw critics of the long-standing anti-legal consensus in favor of protecting consumers from harm to small businesses, workers or competitors. He has also been a public critic of the dominant market position of digital platform giants like Amazon, Google and Facebook, Those tech giants are trying to use that past criticism to force both Cantor and Khan to distance themselves from antitrust enforcement efforts. Whether they succeed or not is not a matter.

Antitrust Attorney Jonathan Cantor testifies before the Senate Judiciary Committee on October 6, 2021 in Washington, DC
Vin McNamee via Getty Images

“I don’t think it’s really about winning a big one,” said Jeff Hauser, a supporter of Kantor’s nomination and director of the Revolving Door Project, a project of the nonprofit Center for Economic and Policy Research, which runs the executive branch. examines. Nominee for conflict of interest. “I think it’s about trying to create controversy around Cantor and trying to make him appear problematic because they are losing the public relations battle.”

edges signed a letter Agree to consult with ethics officers to resolve any conflicts of interest, a common practice for all executive branch appointments. According to DOJ Rules, the agency’s designers are in charge of making formal declarations on ethical questions, including decisions to deny conflicts of interest rules or to issue waivers. According to DOJ rules, the agency designee to make formal declarations on questions of ethics for the Antitrust Division is Associate Attorney General Vanitha Gupta. If Gupta chooses to leave that role, the designated agency ethics officer, Assistant Attorney General for Administration Lee Lofthus, will be in official charge of issuing a formal announcement on Cantor’s separation.

The Justice Department's antitrust lawsuit against Google claims that the company is a monopoly, with 88% of the search market in the United States.
The Justice Department’s antitrust lawsuit against Google claims that the company is a monopoly, with 88% of the search market in the United States.
View press via Eduardo Muoz Alvarez/Getty Images

Government ethics rules may require an officer to separate from cases where he or his former employer had a covered relationship — representing a client or working for a company — within the past year of that officer. With one side in the matter that comes to the fore. An executive order issued by Biden earlier this year extended the “cooling off” period by two years.

For example, Maken Delrheim, who held Cantor’s post under former President Donald Trump, isolated himself From the department’s investigation into Google because of its past work lobbying in support of Google’s purchase of the advertising technology platform DoubleClick.

Cantor led antitrust exercises for the law firms Paul, Weiss, Rifkind, Wharton & Garrison until leaving to form his own private practice in 2020. He and the firm representing a wide range of corporations, such as Yelp and ANGI HomeServices, filed suit. Google to bias search by directing users toward pages run by Google and away from their websites and Microsoft, a longtime Google competitor. Yelp is mentioned in the US case against Google and Google has filed document requests for communications from Yelp officials in the case, but Yelp is not a party to the case.

Rules of ethics may also require the disapproval of an officer based on a more subjective standard that a reasonable person may find, questioning the officer’s impartiality.

Google’s letter called into question Kantar’s impartiality, drawing attention to public criticism of the company’s practices and his work for rival companies advocating for the Justice Department that brought an antitrust lawsuit against Google.

But these allegations of fairness appear to be turning the rules of morality on their head, The purpose of the rules of ethics is to protect the interests of the government from the presence of a conflict of interest or a personal conflict of interest. Kantar’s alleged conflict of interest is that he supports the government’s interest in bringing an antitrust case against Google. He hasn’t previously worked for Google, as Delrheim did.

“He’s not changing sides,” Hauser said. “Normally you go from protecting the polluter and then you’re going to the EPA.”

Big tech companies have also hit out at Federal Trade Commission chair Leena Khan for deflecting criticism from the industry's biggest companies.
Big tech companies have also hit out at Federal Trade Commission chair Leena Khan for deflecting criticism from the industry’s biggest companies.
Pool via Getty Images

Even if DOJ officials believe Cantor may have a conflict of interest, they may issue a waiver to him to participate if it serves a significant government interest. does. It seems that Cantor was appointed to complete Biden’s executive order calls for changes to federal antitrust law With a focus on alleged monopolistic practices by Big Tech firms.

It is not uncommon for executives to obtain moral leeway. In 2016, three DOJ officers, including Gupta, who was then serving as the head of the civil rights division, received exemptions to work on litigation in which their former clients were parties to the case. Two current Biden administration DOJ officers, Gupta and Solicitor General Elizabeth Preller, received a leeway of ethics to serve in their current positions.

Cantor isn’t the only regulator Big Tech wants to sidestep. Facebook and Amazon both sent letters in July Khan’s separation demand From antitrust enforcement cases related to companies on the FTC. Both companies allege that their past criticism of their business practices as an aide to the House Subcommittee on Antitrust and their work to investigate their alleged monopolistic practices presents “the presence of unfairness and unfairness.” Khan noted in his confirmation hearing that he did not have “financial conflicts or personal relationships that are grounds for separation under federal ethics laws.” The FTC is investigating Amazon for anti-competitive practices and is suing in court for breaching Facebook.

Khan’s potential boycott would be more consequential than Kantor’s because the FTC is a five-member board with three Democratic appointees and two Republicans. The loss of Khan’s vote could be significant, while the work of the DOJ Antitrust Division would align with Cantor’s prerogatives whether or not he was forced to withdraw from a case.

So far, Khan’s push to retreat has gone nowhere. The same could be true for Google’s demand that Cantor reuse. But these denial requests are just opening volleys planning a war big business Against Biden’s regulators.

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