ALEXANDRIA, Va. (Legal Newsline) - Google is accusing the Department of Justice of pushing antitrust litigation on behalf of federal agencies that do not want it, with the goal of helping private companies with connections to Assistant Attorney General Jonathan Kanter.
In a 32-page document filed with a Virginia federal court Aug. 31, the company lays out its position that it should be entitled to materials detailing Kanter's motives. Google says the federal agencies the DOJ claims to represent had no interest in bringing a lawsuit, though companies previously represented by Kanter while in private practice do.
Google says the DOJ conducted its multi-year investigation first, then weeks before filing its complaint earlier this year finally reached out to the federal agencies "in earnest." Witnesses from those agencies have testified as to the benefits Google has created, it says.
"These facts demonstrate that the federal agencies are not the parties on whose behalf DOJ is bringing this case," the company's lawyers say. "So on whose behalf is DOJ bringing this lawsuit?"
The lawsuit, which also lists 17 states as plaintiffs, accuses Google of monopolizing the market on internet advertisements by neutralizing or eliminating ad tech competitors through a series of acquisitions. It says Google forces publishers and advertisers to use its products and now controls the technology used by nearly every major website publisher, along with the ad exchange that matches publishers with advertisers.
So the suit must have been brought on behalf of publishers and advertisers, Google says.
"These two categories of industry participants... have something in common: many of them were clients of... Kanter while he was in private practice, paying him millions of dollars over a period of 15 years to advocate that DOJ and other antitrust enforcers bring antitrust cases against Google," the company says.
"The allegations in DOJ's complaint contain many of the same or similar phrases that AAG Kanter included in advocacy pieces he prepared on behalf of private paying clients for DOJ and other antitrust enforcers."
The filing says Kanter has a "deep-seated bias" against Google that violates its right to a neutral prosecutor.
Two of the companies defenses caused the DOJ to file a motion for judgment on them. Google argues there has been an improper selective enforcement of antitrust laws and violations of the Due Process Clause.
Google has made discovery requests related to Kanter's advocacy work and his previous attorney-client relationships. The DOJ calls the requests "invasive and irrelevant."
Google feels differently, obviously, noting his history representing Microsoft, Yelp and News Corp. The media has called Kanter a "critic of big tech" and "one of Google's main legal foes for nearly 15 years."
During confirmation proceedings in 2021, Kanter said he was paid to oppose mergers and acquisitions like Google's $3 billion purchase of DoubleClick - a move cited in the DOJ's complaint.
"The DoubleClick acquisition vaulted Google into a commanding position over the tools publishers use to sell advertising opportunities, complementing Google's existing tool for advertisers, Google Ads, and set the stage for Google's later exclusionary conduct across the ad tech industry," the DOJ complaint says.
Kanter said before his confirmation he had waited years for the DOJ and the Federal Trade Commission to "act swiftly" over the DoubleClick purchase.
The DOJ's investigation began in 2019 after it received documents and advocacy materials from third parties, some of which were represented by Kanter. They include Magnite, OpenX and Roku.
Google complains that similar purchases by Microsoft have gone unpunished while its advertising revenue grew to more than $11 billion in 2022. It adds that even though Kanter initially recused himself from the case because of his work in private practice, he took control of the litigation after a year, even though the Revolving Door Ban required a two-year recusal period.
"Google does not know the extent to which AAG Kanter maintains contact with his former clients concerning this litigation, although he was disclosed as the point of contact for three of them - Magnite, OpenX and News Media Alliance - in the State Plaintiffs' Initial Disclosures in a parallel proceeding," Google says.
"That topic is the subject of pending discovery requests and would cast even more light on the degree to which AAG Kanter's public role in bringing this litigation was inappropriately infect with his previous private practice and financial incentives."