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Ten Facts About Jonathan Kanter, Biden’s Pick to Head Antitrust

Posted  August 23, 2021
By Henry C. Su

President Biden’s nomination of Jonathan Kanter to be the Assistant Attorney General in charge of the U.S. Department of Justice’s Antitrust Division is a sure sign that the Administration is serious about reinvigorating antitrust enforcement. While the Senate Judiciary Committee has not yet taken any action on the nomination, which the White House announced last month, it’s not too soon to consider 10 key facts about Kanter that may indicate the direction he will take federal antitrust enforcement.

  1. Kanter currently runs his own law practice, The Kanter Law Group, which bills itself as an antitrust advocacy boutique. The firm’s roster includes a dog, Murray, who serves as the chief morale officer with his own email address.
  2. Prior to founding The Kanter Law Group in September 2020, Kanter was a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, where he co-chaired the firm’s Antitrust Group with Rick Rule, who headed the Antitrust Division from 1986−89 under President Reagan. According to a Paul Weiss spokesperson, Kanter left the firm “due to a complicated legal conflict that would have required him to discontinue important and longstanding client representations and relationships.” Notably, Paul Weiss is currently defending Apple against antitrust claims brought by Epic Games over App Store commissions.
  3. Before joining Rule in moving to Paul Weiss in 2016, Kanter worked with Rule at both Fried Frank and Cadwalader Wickersham & Taft, LLP. Together they have represented companies like Microsoft and Cigna in high-profile antitrust matters, such as Microsoft’s acquisitions of LinkedIn and Skype, and Cigna’s litigation with the Antitrust Division concerning its attempted acquisition by Anthem. Their role in securing clearances for the Microsoft-Skype transaction garnered the “Merger Control Matter of the Year – Europe” award from Global Competition Review in 2012.
  4. Kanter is known as an outspoken critic of Google, having advocated on behalf of clients like Microsoft, News Corp., Spotify, and Yelp, for the Silicon Valley tech giant to be investigated for alleged violations of the antitrust laws. Not surprisingly, his nomination has led to calls for his eventual recusal in the Antitrust Division’s pending litigation against Google, similar to calls for Federal Trade Commission Chair Lina Khan’s recusal in the FTC’s ongoing matters involving Amazon and Facebook.
  5. Similar to Khan and Tim Wu, who serves as a special assistant to President Biden on technology and competition policy, Kanter is widely regarded as a champion of the “progressive antitrust” movement. Appearing before the Senate Judiciary Committee’s antitrust subcommittee in a December 2018 hearing, he urged U.S. policymakers to “vigorously explore new questions in antitrust to ensure that U.S. antitrust law remains relevant to the realities of today’s economy and society…. It is imperative that the U.S. antitrust law and policy match these new market realities and technologies.”
  6. Kanter made similar remarks as a panelist at an October 2018 FTC hearing on competition and consumer protection policy in the 21st century. There he argued that when it comes to protecting nascent competition or dynamic competition, antitrust enforcement needs to stop always “trying to fit the facts into a model” and “trying to fit the realities of the market into a box.” The prospect of nascent competition in “winner-take-all” and “winner-take-most” markets warrants special attention because of its potential to disrupt the feedback loops that characterize such markets.
  7. In an August 2019 interview by The M and A Lawyer, Kanter voiced his view that, under the Trump administration, “we have not seen a sea change in policy at the FTC or DOJ,” and any change has been “more incremental than transformative.” That said, Kanter observed that “tech is obviously a hot button issue and one where the both the FTC and DOJ are paying close attention not only to mergers, but also to conduct that could run afoul of the antitrust laws.”
  8. Kanter started his legal career as a staff attorney with the FTC’s Bureau of Competition (1998−2000). He worked on the FTC’s investigation of the Exxon−Mobil merger and the eventual consent decree.
  9. The White House’s selection of Kanter to lead the Antitrust Division was the product of an arduous and protracted process to identify a nominee who did not have corporate ties to Big Tech. Notably, Attorney General Merrick Garland had reportedly tapped Susan Davies, a White House veteran from the Obama administration, to be his Assistant Attorney General for antitrust, but the White House nixed that idea because of Davies’s representation of clients like Facebook.
  10. It appears that the White House has made the right choice in picking Kanter to reinvigorate antitrust enforcement. Senator Amy Klobuchar lauded Kanter as “a leader in the effort to increase antitrust enforcement against monopolies by federal, state, and international competition authorities,” while Senator Elizabeth Warren called his nomination “tremendous news for workers and consumers.” And Senator Mike Lee reportedly indicated that he was “encouraged” by Kanter’s track record in challenging Big Tech and looked forward “to learning more about his qualifications.” The likelihood that Kanter will push for aggressive antitrust enforcement has also been acknowledged by his critics. For example, the Information Technology & Innovation Foundation issued a statement calling the nomination “a U-turn away from America’s longstanding approach to regulating competition, back to a time when regulators aggressively pursued the country’s technology leaders.”

Edited by Gary J. Malone

Tagged in: Antitrust Enforcement,

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