Recusals May Draw Kanter Confirmation Interest

Potential recusal of Jonathan Kanter in DOJ’s case against Google could draw Senate Judiciary Committee attention during his confirmation to lead the department's Antitrust Division (see 2107200070). Some experts told us last week there’s a stronger case for Kanter’s recusal than requests for FTC Chair Lina Khan's disqualification from cases involving Amazon and Facebook (see 2107160052). Senators told us they’re reviewing Kanter’s record.

Former Antitrust Division Chief Makan Delrahim recused himself from the department’s Google probe (see 2002050052). Kanter reportedly did legal work against Google for rivals Yelp and Microsoft. He didn't comment Monday.

“He seems qualified, and I’m learning more about him,” said Sen. Richard Blumenthal, D-Conn. “I’m going to have to review his whole record.” John Kennedy, R-La., another Senate Judiciary Committee member, said he’s “still studying” the record. The office for Chairman Dick Durbin, D-Ill., didn’t comment on timing for a potential confirmation hearing. Kanter didn't comment.

Kanter’s recusal is “definitely a possibility,” said Cornell law professor George Alan Hay, who previously worked as Antitrust Division economics director. “But since the case has already been filed, it’s less critical. It means that he couldn’t participate in any settlement discussions, but he would not have had a hand in actual litigation anyway.” Kanter’s situation is “quite different” from Khan’s because her vote is critical to establishing a majority in deciding anything on Amazon, he added.

Compared with Khan, the likelihood for Kanter’s recusal in the Google case is “probably higher given his prior legal work,” said Hunton’s Kevin Hahm, former FTC Mergers IV Division director. Hahm noted former FTC Chairman Joe Simons’ recusal from multiple healthcare cases due to his prior work. Simons also recused himself from the FTC’s Qualcomm case (see 1811060021).

Kanter’s potential recusal will largely depend on what he learned through his work against Google, said University of Baltimore law professor Robert Lande, a former FTC attorney. “I would like to know whether he learned any confidential Google information while working on those cases. If not, it shouldn't matter.”

It’s unlikely Kanter will be forced to step back on this case, said American Economic Liberties Project Research Director Matt Stoller. He noted it might be a different situation had Kanter worked for Google. “Switching sides is the problem,” he said, citing FTC precedent. Kanter’s background reportedly includes work for a firm that represented Amazon, MasterCard and Uber.

There are no grounds for Khan’s recusal in either of her cases, said Stoller. Granting FTC recusals for Amazon and Facebook could chill academic speech, he said: “The argument that if you have opinions about how the law should be enforced on powerful entities, that that disqualifies you from having a policymaking position, that’s pure bullying of academia. Imagine the signal it sends to every law professor who’s looking at these problems.”

House Judiciary Committee Chairman Jerry Nadler, D-N.Y., and House Antitrust Subcommittee Chairman David Cicilline, D-R.I., applauded Kanter’s nomination, saying they look forward to working with him to fight anti-competitive conduct online and “modernize” antitrust laws. Several tech companies and organizations focused lobbying spending against House Judiciary legislative efforts (see 2106240071) last quarter. The list of spenders included Apple, Amazon, Facebook, Google, Twitter, NetChoice, Oracle and the Internet Association. The U.S. Chamber of Commerce reported spending about $11.6 million on various bills, including the Judiciary package.

Amazon led Q2 tech lobbying spending (see 2107210049), reporting $4.9 million, up almost 11% from the year-ago quarter. Facebook paid $4.77 million, Google reported $2 million and Apple $1.64 million. Twitter spent $660,000, a 69% increase. Companies also targeted copyright-related issues, including Amazon, Facebook, Google, Oracle, Intel, Microsoft, Netflix, the Internet Association and Twitter. The Computer & Communications Industry Association, which reported $30,000 total, listed Copyright Act Section 301 among issues.