Judge rejects Google claim that DOJ’s Jonathan Kanter is improperly biased

The federal judge overseeing the second of the Justice Department’s pair of antitrust lawsuits on Friday rejected Google’s claims that one of the architects behind the case, Assistant Attorney General Jonathan Kanter, is improperly biased and should submit to the company’s questioning at a deposition.

Google argued in a legal filing that before Kanter became a top antitrust attorney in the Justice Department, he represented Microsoft and other Google competitors, who paid him “millions of dollars over a period of 15 years to advocate that DOJ and other antitrust enforcers bring antitrust cases against Google.”

Justice Department officials countered that attorneys such as Kanter are not usually subject to depositions and that Google had not met the legal standard to question him.

The case, which is focused on Google’s advertising technology, is still wending its way to trial.

The Justice Department and 17 states are seeking $300 million and possibly more from Google, alleging in federal court in Virginia that the company is hurting competitors by monopolizing key advertising technologies that businesses need to generate revenue online.

U.S. District Judge Leonie M. Brinkema rejected Google’s claims, calling allegations of bias “essentially a red herring defense.”

Kanter has built a reputation as an adversary of Big Tech, previously representing clients like Google critic Yelp as a partner at the Kanter Law Group.

After President Biden nominated him to lead the Justice Department’s antitrust division in 2021, Kanter was recused from the Google case for his first year at the department, and was authorized to work on it after that.

Kanter was re-recused in April, after Google retained his former employer, law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, to represent them in the case.

The Virginia hearing is a reminder of the Justice Department’s multipronged offensive: Prosecutors will get two swings to try to nail Google on antitrust charges appearing before one court in Washington and one in Virginia.

The first of the two cases – which revolves around Google’s dominance in the search and search advertising sectors – began trial in Washington to much fanfare on Tuesday, marking the first time the Justice Department has taken a major tech company to court for antitrust issues in more than two decades.

At the Friday hearing, Brinkema admonished an attorney for the tech company to focus on what she described as “huge discovery problems” in the case.

The court found that Google failed to provide millions of documents subject to discovery before a judge’s deadline this summer.

“In my view, this is a mistake,” Brinkema said of the allegations involving Kanter. “Google needs to focus on … whether the advertising platform is anti-competitive – that’s the case.”

Justice Department attorney Aaron Teitelbaum argued that Google was “attempting to elevate its disagreement” with the department’s staffing decisions – a reference to Kanter’s hiring – “into a constitutional issue.”

But Supreme Court precedent establishes that questioning an attorney should be done only in extraordinary circumstances, which were not present in the Google antitrust litigation, Teitelbaum argued.

Although the investigation began in 2019, under the Trump administration, Google attorney Eric Mahr argued that it kicked into high gear only after Kanter got involved.“Mr. Kanter, along with the DOJ’s chief economist, who was not the chief economist at the time, appeared before the Antitrust Division on his own behalf to lobby DOJ to bring this case that he brought 11 weeks later,” Mahr said.

Mahr noted that the Justice Department has said career staff also approved the Google ad-tech lawsuit, but he added: “Mr. Kanter shouldn’t be allowed to hide behind the career staff, when he directed them to do that.”

Brinkema said: “I might agree with you if Mr. Kanter was the sole attorney in this case.”

The judge noted that Democratic and Republican state attorneys general from 17 states were co-plaintiffs in the DOJ’s lawsuit.

The Washington Post is a member of the News Media Alliance, a trade association that Kanter has worked with in the past.

The judge noted that the Justice Department is still seeking millions of documents in discovery from Google, which the tech company has not produced despite a judge’s deadline earlier this month.

“You need to get this case more focused,” Brinkema told Mahr. “There are huge discovery problems.”