Biden’s Antitrust Cop Got a Big Win. Will It Be His Last?
(Bloomberg) -- Hetal Doshi sprinted down the marble hallway on the fourth floor of the Justice Department’s antitrust division last month.
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“We won! We won! We won!” she shouted, bursting into a wood-paneled conference room where Jonathan Kanter, the assistant US attorney general for antitrust, sat talking with a team of young lawyers. Doshi, Kanter’s head of litigation, embraced him.
Kanter paused. “What did we win?”
Minutes earlier, a federal judge in Washington had ruled that Alphabet Inc.’s Google had illegally monopolized the market for online search and search advertising. The decision marked the US’s most significant victory in a monopoly case since its initial triumph over Microsoft Corp. more than two decades ago.
For Kanter, a 51-year-old lawyer brought in to the Biden administration with a mandate to restore competition in Corporate America, it was a moment to savor — a crowning achievement for an antitrust revival that has sought to show that laws first enacted to rein in 19th century business titans apply to 21st century technology juggernauts.
“No company, no matter how big or how influential, is above the law,” Kanter said in an interview with Bloomberg News. “Antitrust laws apply today just as much as they did the day they were written.”
Kanter and Lina Khan, chair of the Federal Trade Commission, have led one of the most confrontational chapters in recent US regulatory history — and become targets for industry leaders who say the Biden administration has been too aggressive in overseeing business. Kanter says that competition is good and necessary for free markets.
In the three years since Kanter took his post, the Justice Department has accused bellwether US companies of illegally dominating markets for digital advertising (Google), smartphones (Apple Inc.), concert tickets (Live Nation Entertainment Inc.’s Ticketmaster) and debit cards (Visa Inc.). It has also blocked numerous mergers, frustrating executives, bankers and investors.
Barak Orbach, a professor at the University of Arizona law school, said he was wary of Kanter’s rhetoric but has come to respect his work “energizing” antitrust law focused on monopolies.
“These cases are extraordinarily important,” he said. “These are old legal principles, and they are showing how they are applicable today.”
Still, whether the more aggressive approach to antitrust endures beyond the Biden years is an open question. The Kanter-Khan era may come to be seen as a watershed, or it could turn out to be a brief eddy in the broader current of capitalism.
Google plans to appeal its loss. And much like Microsoft, which now has a market value north of $3 trillion, the tech giant could emerge with its strength intact or even increased.
Political Pressure
Debates about how big and powerful companies should be often don’t break along partisan lines. And actions taken by one administration can reverberate beyond the election cycle, even when political winds shift.
The Trump administration first sued Google over search and also opened the investigation that led to the Apple lawsuit, filed in March. Republicans such as Donald Trump’s running mate, JD Vance, have at times lauded the work of Biden’s antitrust enforcers. Still, Trump, the standard bearer for the traditional party of business, is seen as friendlier toward mergers.
Meanwhile, Vice President Kamala Harris, who rose to political prominence in the tech-centric San Francisco Bay Area, hasn’t revealed much about her views on antitrust, but some powerful Democratic donors from Wall Street to Silicon Valley have pressed her to change course from Biden’s policies.
Orbach, the law professor, said merger challenges have had a chilling effect and that the next administration may shift gears.
“The harm to business is meaningful,” he said. “The impact on transactions in the markets and flow of capital has been negative.”
Kanter said the impact is greatest “on deals that raise competition concerns.”
“To the extent that our work is having a chilling effect on anticompetitive deals, or deals that otherwise shouldn't leave the boardroom in the first place, then that's our work being efficient,” he said.
With the presidential race in its final weeks, Kanter brought another case that could shake up a vast industry. Earlier this month, the Justice Department sued Visa for monopolizing debit-card markets — an investigation that grew out of a Trump-era case barring the payments giant from buying fintech Plaid Inc.
During that fight, antitrust enforcers said they unearthed evidence that Visa had tried to prevent rivals such as Paypal Holdings Inc., Block Inc. and Apple from competing with its networks. Visa has said that the lawsuit is without merit.
Whatever happens in November, some observers say Kanter’s approach to fighting alleged monopolies has permanently changed the landscape.
“There’s been a sea change in how both parties view antitrust enforcement,” said Josh Tzuker, who worked in the Justice Department before joining consulting firm FGS Global this year. “There will be plenty of enforcement no matter who is president.”
Speaking Plainly
Kanter’s tenure got off to a turbulent start: The antitrust division lost challenges to three mergers. Prosecutors also failed — three times — to convince juries that Tyson Foods Inc. executives had fixed chicken prices. Undeterred, Kanter hired more litigators and continued to bring cases.
To build public support, Kanter and other antitrust enforcers have tried to communicate plainly, eschewing talk about economic models in favor of references to “green bubble” text messages and song lyrics. Kanter, who has a music studio in his basement, said his familiarity with the technology behind recording helped him understand how giant online platforms work.
Kanter has met with farmers in Minnesota, emergency room doctors in Washington, musicians in Nashville and elementary school students from Connecticut to talk about antitrust and hear how business practices affect Americans. He also regularly visits law schools, where he said interest in antitrust is high.
“They’re growing up in a world where they see economic opportunity as closed off and there’s a lack of confidence that they’ll have the same economic opportunities as their parents and grandparents had,” Kanter said.
Rick Rule led the Justice Department's antitrust division from 1986 to 1989 and later worked with Kanter in private practice. He said Kanter’s approach is diametrically opposed to his own, but likely represents a lasting change.
“Clearly his goal and his focus has been on reversing what we did in the 1980s,” Rule said.
“Antitrust does have broad sweeps of the pendulum, and I think the pendulum has swung toward more aggressive enforcement,” said Rule, who called Kanter’s victory in the Google case “a hallmark success.”
Long Battles
Kanter said the Google decision belongs on the “Mount Rushmore” of seminal monopoly cases, including the rulings that led to the breakups of Standard Oil and AT&T.
Those companies were core gatekeepers that competitors, customers and the economy couldn’t do without, Kanter said. He sees Google in a similar light. The agency will soon ask a federal judge for remedies in the search case that could include a breakup of the tech giant.
Some legal experts think it will take time to know how meaningful the shift in antitrust policy has truly been. Douglas Ross, a professor of antitrust at the University of Washington law school, said that the Google ruling aside, “the courts have not budged.”
“Whether this administration’s antitrust enforcers change that consensus, we don’t know yet,” said Ross, who practiced antitrust law for 40 years before moving to academia.
In the meantime, the Justice Department has gone to trial in a second case against Google focused on its alleged chokehold on the technology behind the market for online display ads. Google denies the allegations and says advertisers have plenty of alternatives.
Another long legal battle is expected. Sundar Pichai, the chief executive of Alphabet, has said he expects it will take many years to resolve the antitrust fights and doesn’t see them as an immediate threat.
While there are no guarantees his work won’t be undone by his successor or a higher court, Kanter said he is focused on making the antitrust division better-equipped to tackle modern market realities.
“My focus is to be as effective as we can to make sure we’re building an antitrust division that’s fit for purpose in a modern economy,” he said.
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