Antitrust legal professional Jonathan Kanter testifies earlier than the Senate Judiciary Committee October 6, 2021 in Washington, DC.
Win McNamee | Getty Photos
The Senate voted 68-29 on Tuesday to substantiate Jonathan Kanter as Assistant Lawyer Basic of the Division of Justice’s Antitrust Division.
Progressives cheered President Joe Biden’s choice to appoint Kanter, finishing the trifecta of antitrust reformers whose names are printed on coffee mugs. The others are Federal Commerce Fee Chair Lina Khan and Nationwide Financial Council advisor Tim Wu.
Because the DOJ’s new antitrust chief, Kanter will inherit a lawsuit towards Google filed through the Trump administration. However it’s unclear if Kanter will recuse himself from the case, given his previous work for Google rivals, together with Yelp and Microsoft.
The DOJ has additionally reportedly regarded into competitors considerations round Apple. Kanter has completed work for Spotify, which competes with Apple Music.
Kanter informed lawmakers he would seek the advice of with ethics officers on the DOJ about recusal if confirmed. Nonetheless, he could be in place to nominate deputies that might help his antitrust strategy.
Kanter has gained the help of senators throughout the aisle who’ve argued that too few tech corporations management an outsized quantity of energy. His nomination superior out of the Judiciary Committee in a voice vote.
Sen. John Cornyn, R-Texas, was the one member of the Senate Judiciary Committee who requested to be marked as voting towards the development of Kanter’s nomination to the ground. Cornyn mentioned that whereas he shared a few of Kanter’s considerations with the tech trade and supported laws to curb the trade’s affect, “the DOJ’s Antitrust Division is far broader than simply coping with Massive Tech.”
Cornyn mentioned he is “troubled” by Kanter’s criticism of the buyer welfare customary, the prevalent judicial framework that has guided antitrust rulings for many years, and is hesitant concerning the “broad customary” he says Kanter favors. Reform-minded antitrust students and practitioners have argued the usual, which regularly appears to be like at whether or not costs go up or down for customers, is simply too slim to evaluate fashionable market realities, like these created by digital platforms.
Cornyn mentioned Kanter’s openness to using antitrust enforcement to strengthen labor rights, for instance, isn’t applicable for that statute.
“I share Mr. Kanter’s objective of creating certain that markets do work for the American individuals, however I do not help undercutting necessary antitrust authorized ideas within the service of short-term political objectives,” Cornyn mentioned.
Sen. Amy Klobuchar, D-Minn., chair of the antitrust subcommittee, responded to Cornyn by pointing to the help of Kanter by Trump’s antitrust chief Makan Delrahim. Delrahim was one of many 9 former DOJ antitrust chiefs who signed a letter to Judiciary Committee leaders encouraging Kanter’s swift affirmation.
“General, he’s the place this committee is when it comes to how we have talked about this,” Klobuchar mentioned of Kanter. “This can be a second the place we will unite and get behind a nominee, simply as I bought behind Makan Delrahim when Donald Trump nominated him as a result of I understood we needed to transfer ahead, despite the fact that he won’t have been my first selection for antitrust.”
Relationship with the FTC
As soon as Kanter will get began on the Antitrust Division, companies and their legal professionals shall be watching intently for coverage indicators and indications of how he’ll steer the group consistent with, or in a different way, from Khan’s FTC.
Whereas Khan and Kanter had been equally seen as progressive favorites previous to their nominations, Kanter’s background has put him in shut proximity to the kind of legal professionals who will carry mergers and competitors considerations earlier than the company. Earlier than leaving to begin his personal legislation follow, he labored for the legislation agency Paul, Weiss, Rifkind, Wharton & Garrison. Khan, the youngest person sworn in to lead the commission at age 32, came from a teaching job at Columbia Law School after helping to write a report for the House Judiciary subcommittee on antitrust on competition in digital markets.
Khan has already implemented several policies on the competition side that have left lawyers with work before the commission scratching their heads. For example, under her leadership, the FTC has begun asking broader questions about the potential impacts that transactions could have, like on labor markets. Some antitrust practitioners say such questions aren’t directly relevant to evaluating harm to competition, though the FTC has signaled it wants to take a more expansive view of the impacts of competition.
Kanter has indicated that he may not follow the same approach. At his confirmation hearing, Sen. Mike Lee, R-Utah, asked if Kanter would ask subjects of antitrust investigations about their ESG (environmental, social and governance) policies in evaluating competitive harm.
“I don’t see situations where ESG policies that are unrelated to competitive issues are relevant to antitrust enforcement,” Kanter said.
The Antitrust Division shares jurisdiction with the FTC over civil antitrust conduct cases as well as merger review. The agencies typically divide up work through a process known as clearance. Experience in matters involving a particular industry is usually a key consideration in the clearance process, with hospital mergers often falling to the FTC, for example. But some industries, like tech, are less clear-cut, because each agency has experience in those matters.
Clearance has been a point of contention between agency heads as recently as during the Trump administration between then-FTC Chair Joe Simons and then-Antitrust Division chief Delrahim. The two ended up splitting ownership of tech antitrust investigations, with the FTC taking the lead on Facebook and Amazon and the DOJ taking Apple and Google, as multiple outlets reported in 2019.
Kanter said in his written responses for the record that if confirmed, he would “endeavor to ensure the efficient and proper division of responsibility between the DOJ and FTC, including the avoidance of unnecessary duplication.”
He also referenced his past work as an FTC lawyer, saying, “I am hopeful that my perspective will enhance collaboration between the two agencies.”
This story is developing. Check back for updates.
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