Senate confirms Jonathan Kanter to lead DOJ Antitrust Division

Antitrust attorney Jonathan Kanter testifies before the Senate Judiciary Committee on October 6, 2021 in Washington, DC.

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The Senate voted 68 to 29 on Tuesday to confirm the appointment of Jonathan Kanter as the assistant attorney general for the Justice Department’s Antitrust Division.

Progressives welcomed President Joe Biden’s decision to nominate Kanter, completing the trilogy of antitrust reformers in their name printed on coffee mugs. The others are Federal Trade Commission Chair Lina Khan and National Economic Council Adviser Tim Wu.

As the Justice Department’s new antitrust chief, Kanter will inherit a lawsuit against Google that was filed during the Trump administration. But it’s unclear if Kanter will step down from the case, given his past work with Google competitors, including Yelp and Microsoft.

The Department of Justice has also reportedly looked into competition concerns about Apple. Kanter has done the work for Spotify, which competes with Apple Music.

Kanter told lawmakers he would consult with Justice Department ethics officials about stepping down if confirmed. However, he will be in a position to appoint deputies who can assist him in his antitrust approach.

Kanter won the support of senators across the aisle who argued that too few tech companies controlled an enormous amount of power. Several Republican senators voted for Kanter’s confirmation, including Senators Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, prominent members of the Judiciary Committee and Antitrust Subcommittee, respectively.

His nomination was previously eliminated from the Judiciary Committee in a vote.

Senator John Cornyn, R-Texas, was the only member of the Senate Judiciary Committee to request that it be flagged as a vote against advancing Kanter’s nomination to the floor. Cornyn said that while he shares some of Kanter’s concerns with the tech industry and supports legislation to limit the industry’s influence, “the Justice Department’s antitrust division is much broader than just dealing with big tech companies.”

Cornyn said he was “disturbed” by Kanter’s criticism of the consumer welfare standard, the prevailing judicial framework that has guided antitrust rulings for decades, and hesitant about the “general standard” that Kanter would prefer. Reform-minded antitrust scholars and practitioners have argued that the standard, which often considers whether prices are rising or falling for consumers, is too narrow to assess modern market realities, such as those created by digital platforms.

Cornyn said Kanter’s openness to using antitrust enforcement to advance workers’ rights, for example, is not appropriate for that law.

“I share Mr. Kanter’s goal of making sure that markets work for the American people, but I am not in favor of undermining important legal principles of antitrust in the service of short-term political goals,” Cornyn said.

Senator Amy Klobuchar, D-Minnesota, chair of the Antitrust Subcommittee, responded to Cornyn by pointing to Kanter’s support from Trump’s antitrust chief, Place Delrahim. Dilrahim was one of the nine former Justice Department antitrust chiefs who signed a letter to Judicial Committee leaders encouraging rapid confirmation of Kanter.

“Overall, it’s where this committee is in terms of the way we’ve talked about this,” Klobuchar said of Kanter. “This is a moment when we can unite and stand behind a candidate, just as I lagged behind Delrahim when Donald Trump nominated him because I knew we had to move on, even though it might not have been my first antitrust choice.”

Relationship with FTC

Once Kanter starts in the antitrust department, the companies and their attorneys will watch closely for policy cues and cues on how to steer the organization in line with or differently from Khan’s FTC.

While Khan and Kanter were similarly seen as progressive candidates before their nominations, Kanter’s background brought him close to the type of lawyers who would bring mergers and competition concerns before the agency. Before leaving to start his law practice, he worked for the law firms of Paul, Weiss, Rifkind, and Wharton & Garrison. Khan The youngest person sworn in to lead the committee at age 32, came from a teaching job at Columbia Law School after helping write a report for the House Judicial Subcommittee on Antitrust on Competition in Digital Markets.

Khan has already implemented several policies on the competition side that have left lawyers working before the commission baffled. For example, under her leadership, the Federal Trade Commission has begun to ask broader questions about the potential impacts that transactions can have, such as on labor markets. Some antitrust practitioners say such questions are not directly relevant to assessing harm to competition, although the FTC has indicated that it wants to take a more comprehensive view of competition effects.

Kanter indicated that he may not take the same approach. At his hearing, Lee, a senior member of the Antitrust Subcommittee, asked if Kanter would ask people subject to antitrust investigations about ESG’s (Environmental, Social and Governance) policies in competitive damage assessment.

“I don’t see situations where ESG policies that have nothing to do with competitive matters are relevant to antitrust enforcement,” Kanter said.

The Antitrust Division shares jurisdiction with the Federal Trade Commission on civil antitrust conduct issues as well as merger review. Agencies usually divide the work through a process known as clearance. Experience in matters relating to a particular industry is usually a major consideration in the clearance process, with hospital mergers often falling to the FTC, for example. But some industries, such as technology, are less clear-cut, because every agency has expertise in these matters.

Clearance has been a point of contention among agency chiefs recently during the Trump administration between then-FTC Chairman Joe Simmons and then-antitrust chief Dilrahim. They ended up splitting ownership of tech antitrust investigations, with the FTC taking the lead on Facebook and Amazon and the Department of Justice taking over Apple and Google, several outlets reported in 2019.

Kanter said in his written responses to the filing that if confirmed, he would “seek to ensure an effective and proper division of responsibility between the Department of Justice and the Federal Trade Commission, including to avoid unnecessary duplication.”

He also noted his previous work as an attorney for the Federal Trade Commission, saying, “I hope my view will enhance cooperation between the two agencies.”

This story is developing. Check again for updates.

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