On Tuesday, July 20, 2021, President Joe Biden announced that he will nominate Jonathan Kanter to be assistant attorney general for the Antitrust Division of the Department of Justice (“DOJ”). Kanter is no stranger to the antitrust agency. For years, he has been a vocal advocate for increased antitrust enforcement against tech giants, particularly Alphabet Inc.’s subsidiary Google. Over the past decade, Kanter has represented numerous companies, including Microsoft Corporation and Yelp, Inc., that have urged antitrust enforcers to challenge Google. If confirmed by the Senate, Kanter would inherit the DOJ’s ongoing lawsuit against Google, as well as its investigation of Apple Inc.
Kanter is currently a partner at The Kanter Law Group LLP, a boutique antitrust law firm he started last year. According to its website, the firm advocates for federal and state antitrust law enforcement. Before founding his firm, Kanter was co-chair of the antitrust practice at Paul, Weiss, Rifkind, Wharton, and Garrison LLP. He also served as an attorney at the US Federal Trade Commission’s (“FTC”) Bureau of Competition during the Clinton administration.
Kanter is the third prominent “Big Tech” critic nominated for a key Biden administration antitrust enforcement position. Earlier this year, Biden named Lina Khan, a Columbia Law School professor and vocal Amazon critic, as the FTC’s chair. And Tim Wu, Khan’s former Columbia Law School colleague, serves as a special assistant to the president overseeing technology and competition policy at the National Economic Council. Together, they will share responsibility for implementing Biden’s recent “Executive Order on Promoting Competition in the American Economy,” which calls for “greater scrutiny of mergers, especially by dominant internet platforms, with a particular attention to the acquisition of nascent competitors, serial mergers, the accumulation of data, competition by ‘free’ products, and the effect on user privacy.”
Although Kanter’s nomination, which had been the subject of speculation for months, is surely most significant for Big Tech firms, even companies far removed from the tech space will be affected by the president’s selection of Kanter and Khan to lead the antitrust agencies. Both will exercise the Biden administration’s antitrust enforcement powers using a range of tools that have not been employed in decades (if at all).
Kanter has already shown his eagerness for an upsurge in antitrust enforcement. Bloomberg reports that as far back as 2016, Kanter was criticizing the agencies’ failure to bring monopolization cases against dominant companies: “Antitrust enforcement is barely on life support,” he said. “When was the last time you can remember a major antitrust agency bringing a monopolization case? The reason you can’t remember it is because they haven’t done it.”1 Last year, Kanter urged antitrust officials to enforce the current antitrust laws “regularly, with vigor, with passion, creativity and meaning.”2 If confirmed, Kanter can be expected to adopt and expand on this approach, possibly by advancing novel and untested theories of competitive harm. While high-tech industries may be his top priority, there is no reason to think that he will not pursue his approach across industries.
Khan, for her part, has already demonstrated her willingness to break from the antitrust status quo. Earlier this month, she joined the other Democratic FTC commissioners in voting to rescind a 2015 FTC antitrust policy statement that laid out the framework for enforcing Section 5 of the Federal Trade Commission Act, which makes “unfair methods of competition” unlawful. The now-defunct policy statement indicated that the FTC would be guided by “the promotion of consumer welfare” in determining whether to challenge conduct and would evaluate conduct under a framework similar to the rule of reason. The decision to rescind the 2015 “Unfair Methods of Competition” policy suggests that Khan and Democratic FTC commissioners are prepared to walk away from the consumer-welfare standard as the cornerstone of antitrust enforcement, a move that will have far-reaching implications for companies across all sectors of the American economy.
The Biden administration’s policy shift could have particularly dramatic implications for the antitrust agencies’ merger reviews. More companies have submitted Hart-Scott Rodino (“HSR”) premerger filings to the agencies during the current fiscal year than any fiscal year since 2001. With the DOJ, FTC and White House closely aligned on the need for vigorous antitrust enforcement and unafraid to push the envelope on antitrust policy (as with the abandonment of the consumer-welfare standard), parties to proposed merger transactions should expect the unexpected. Transactions that would have cleared the regulatory process without question during prior administrations likely will be subject to more, and far less predictable, scrutiny.