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Antitrust legal professional Jonathan Kanter testifies earlier than the Senate Judiciary Committee October 6, 2021 in Washington, DC.
Win McNamee | Getty Pictures
The Senate voted 68-29 on Tuesday to verify Jonathan Kanter as Assistant Lawyer Normal 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 accomplished work for Spotify, which competes with Apple Music.
Kanter instructed lawmakers he would seek the advice of with ethics officers on the DOJ about recusal if confirmed. Nonetheless, he can be in place to nominate deputies that might help his antitrust method.
Kanter has received the assist of senators throughout the aisle who’ve argued that too few tech firms management an outsized quantity of energy. A number of Republican senators voted in favor of Kanter’s affirmation, together with Sens. Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, rating members on the Judiciary Committee and its antitrust subcommittee, respectively.
His nomination had beforehand 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 business and supported laws to curb the business’s affect, “the DOJ’s Antitrust Division is far broader than simply coping with Huge Tech.”
Cornyn mentioned he is “troubled” by Kanter’s criticism of the buyer welfare normal, the prevalent judicial framework that has guided antitrust rulings for many years, and is hesitant in regards to the “broad normal” he says Kanter favors. Reform-minded antitrust students and practitioners have argued the usual, which regularly seems to be at whether or not costs go up or down for shoppers, is just too slim to evaluate trendy market realities, like these created by digital platforms.
Cornyn mentioned Kanter’s openness to using antitrust enforcement to strengthen labor rights, for instance, just isn’t acceptable for that statute.
“I share Mr. Kanter’s aim of creating certain that markets do work for the American individuals, however I do not assist undercutting vital 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 assist 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.
“Total, he’s the place this committee is when it comes to how we have talked about this,” Klobuchar mentioned of Kanter. “It is a second the place we are able to unite and get behind a nominee, simply as I received behind Makan Delrahim when Donald Trump nominated him as a result of I understood we needed to transfer ahead, although he may not 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 might be watching carefully for coverage alerts and indications of how he’ll steer the group in keeping with, or in a different way, from Khan’s FTC.
Whereas Khan and Kanter have 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 convey mergers and competitors considerations earlier than the company. Earlier than leaving to start out his personal regulation apply, he labored for the regulation 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, Lee, the antitrust subcommittee ranking member, 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.”
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