On July 20, 2021, President Biden nominated Jonathan Kanter, founder of the Kanter Law Group, to serve as Assistant Attorney General for the Antitrust Division at the Department of Justice (“DOJ”). Mr. Kanter is well known in antitrust circles for his experience representing complainants before regulators against some of the world’s biggest technology companies, though he also has extensive experience representing respondents (including technology companies) in antitrust investigations. Advocates for stronger antitrust enforcement celebrated the decision, though Mr. Kanter’s enforcement priorities remain as yet largely unknown.
Kanter’s Background
Mr. Kanter began his career as a staff attorney at the Federal Trade Commission (“FTC”) during the Clinton administration before moving to Fried, Frank, Harris, Shriver & Jacobson, as an associate. While at Fried Frank, Mr. Kanter represented represented large technology clients in antitrust challenges from the Justice Department and European antitrust authorities.
Mr. Kanter later served as a partner at Cadwalader, Wickersham & Taft as well as Co-Chair of the antitrust practice at Paul, Weiss, Rifkind, Wharton, and Garrison LLP. During his time at both firms, Mr. Kanter worked alongside Rick Rule, a Republican who served as President Ronald Reagan’s DOJ antitrust chief. Mr. Kanter became known for representing large companies in antitrust fights with Google. Mr. Kanter also represented companies that raised antitrust complaints against Apple and Amazon. In 2020, Mr. Kanter left Paul Weiss and founded his own law firm, the Kanter Law Group, which focuses on antitrust advocacy in Washington D.C.
Potential Recusal
Mr. Kanter’s representation of some technology companies and criticism of other tech companies for alleged anticompetitive behavior may create conflict-of-interest questions if Mr. Kanter is confirmed.
Some of the companies that Mr. Kanter has criticized or sued may urge him to recuse himself from cases that impact them. Recently, both Facebook and Amazon requested the recusal of newly appointed FTC Chair, Lina Khan, based on her prior criticism of those companies. If Mr. Kanter follows the approach of his predecessors, he will make recusal decisions based on the guidance of government ethics officials after his confirmation.
Senate Confirmation
The Senate confirmation process may take several months due to the upcoming August recess, but there appears to be bipartisan support for the appointment. Senator Mike Lee (R-UT) was “encouraged” by Kanter’s track record1 while Senator Amy Klobuchar (D-MN), chair of the Senate Antitrust Subcommittee, stated that Kanter’s “deep legal experience and history of advocating for aggressive action make him an excellent choice.”2 Makan Delrahim, Mr. Kanter’s predecessor under the Trump administration, said that Mr. Kanter would be a “great leader” of the Division and called him a “serious leader” with both private and government experience.3
Going Forward
To understand how he might lead the Antitrust Division, one can look to a speech that Mr. Kanter gave at a Senate Judiciary Subcommittee meeting in December 2018. In his testimony, Mr. Kanter suggested that the U.S. follow the European Union’s vigorous enforcement of anticompetitive conduct “so that the law can develop to reflect changing market conditions.”4 Mr. Kanter stressed that the global economy has transformed as data has become a critical business resource, which has made certain business models, unimaginable a decade earlier, commonplace due to important technology markets.5 Mr. Kanter emphasized the importance of bringing new antitrust enforcement cases, which he stated is “far more precise and effective tool to protect the free market . . . as opposed to regulation.”6 Notably, Mr. Kanter has not called for the type of fundamental reorientation to antitrust enforcement that his future counterpart at the FTC has urged. We may learn more about Mr. Kanter’s enforcement priorities from his nominee questionnaire, nomination hearing, and the deputy assistant attorneys general (“DAAG”) appointed to support him.
Mr. Kanter’s appointment rounds out a collection of recent Biden administration choices that suggest a robust antitrust enforcement regime. Tim Wu is currently the Special Assistant to the President for Technology and Competition Policy on the National Economic Council and Ms. Khan is the new FTC Chair. Ms. Khan and Mr. Wu have advocated for a new approach to U.S. antitrust law.7 Ultimately, the Biden administration, through its recent appointments, has shown a willingness to rethink and reshape U.S. antitrust enforcement and policy.
1 Andrew Ross Sorkin et. al., Another Big Tech Critic Joins Biden’s Antitrust Team, New York Times, July 21, 2021, https://www.nytimes.com/2021/07/21/business/dealbook/kanter-justice-antitrust.html.
2 Ryan Tracy and Aruna Viswanatha, Biden to Nominate Jonathan Kanter as Chief of Justice Department’s Antitrust Division, Wall Street Journal, July 20, 2021, https://www.wsj.com/articles/jonathan-kanter-to-be-nominated-as-doj-antitrust-chief-white-house-says-11626805273.
3 Lauren Hirsch and David McCabe, Biden to Name a Critic of Big Tech as the Top Antitrust Cop, N.Y. Times, July 24, 2021, https://www.nytimes.com/2021/07/20/business/kanter-doj-antitrust.html.
4 A Comparative Look at Competition Law Approaches to Monopoly and Abuse of Dominance in the US and EU, 115 Cong., Dec. 19, 2018, at 3, https://www.judiciary.senate.gov/imo/media/doc/Kanter%20Testimony.pdf.
5 Id.
6 Id.
7 Tucker et. al., Lina Kahn Appointed FTC Chair, Vinson & Elkins, June 24, 2021, https://www.velaw.com/insights/lina-kahn-appointed-ftc-chair/.
