In an opposition filed with the U.S. District Court for the Eastern District of Virginia, Google argued that Assistant Attorney General Jonathan Kanter's previous work in private practice demonstrates his bias against Google. Kanter is the head of the Department of Justice's (DOJ) Antitrust Division.
Google filed the opposition in response to the DOJ's motion for partial judgment on the pleadings and said in the document that the DOJ filed its "untimely motion" in an effort to stop Google's inquiry into "the biases of its prosecutor and witnesses." Google said that representatives of the federal agencies on whose behalf the DOJ is seeking $300 million in damages have testified "that they do not view Google’s conduct as anticompetitive or harmful." On the contrary, Google said in the opposition, "federal agency witnesses have testified to the benefits Google has created for them."
In the opposition, Google asked, "So on whose behalf is DOJ bringing this lawsuit?" Google asserted that the discovery process revealed that the DOJ appeared to file the lawsuit on behalf of "big industry publishers" and "competitors of Google." The opposition stated that "many" of the publishers and competitors were previous clients of Kanter when he worked in private practice, "paying him millions of dollars over a period of fifteen years to advocate that DOJ and other antitrust enforcers bring antitrust cases against Google."
Google highlighted in its argument several news headlines that were published when Kanter was nominated and confirmed to his position in the DOJ. The headlines included “Biden to Name a Critic of Big Tech as the Top Antitrust Cop" from the New York Times and "Senate Confirms Google Foe as DOJ’s Antitrust Chief" from Bloomberg. Google also cited Kanter's Senate testimony, in which he stated that his role in private practice involved convincing government antitrust agencies to pursue cases against business rivals of his clients. Additionally, Kanter said in the testimony that he was paid to oppose Google's acquisition of DoubleClick, "which is now a central allegation of this lawsuit."
"AAG Kanter’s deep-seated bias against Google—pre-judging Google even before he assumed public office—violates Google’s Due Process right to a neutral prosecutor," Google said in its opposition. "Since assuming office, AAG Kanter has also treated his former clients differently than Google, reflecting selective enforcement of the antitrust laws. The detailed facts in this opposition—demonstrating how AAG Kanter is using public office to accomplish what he was unable to do in private practice on behalf of his paying clients—are largely based on publicly available information."
According to the document, the DOJ's initial antitrust investigation into Google, which began in 2019, involved the review of advocacy materials from third parties that were represented by Kanter, some of which were "ad tech rivals" of Google, including Magnite, OpenX, and Roku. The document also highlighted the fact that Microsoft has a comparable ad tech stack to that of Google, but Microsoft's acquisitions have not been the subject of antitrust investigations.
"Despite having been paid by well-established Google rivals to agitate for this lawsuit while in private practice, on November 7, 2022, AAG Kanter was authorized to lead this action on behalf of the federal government he had been lobbying," the document said. "As soon as AAG Kanter was 'cleared' to lead the matter, a complaint was prepared that asserted the same antitrust theories that AAG Kanter had been paid to press for years on behalf of his private practice clients."
Federal Judge Leonie Brinkema recently rejected Google's request to probe Kanter's "bias," stating that the motivations of one prosecutor are irrelevant in a case that has been joined by more than a dozen state attorneys general, Legal Newsline reported.
