ALEXANDRIA, Va. (Legal Newsline) - A Virginia federal judge has rejected Google's pleas to probe what it called a "deep-seated bias" from a federal prosecutor who made his living in private practice trying to punish the company.
Two defenses the company raised in response to a Department of Justice antitrust lawsuit "raise irrelevant matters," Alexandria judge Leonie Brinkema wrote Sept. 18. She found that the motivations of one DOJ prosecutor in a lawsuit joined by 17 state attorneys general could not possibly cause dismissal of the complaint.
"Google's affirmative defense fails because it is 'irrelevant to any issue to be decided by the jury in this case,'" she wrote.
"In all of the cases cited by Google to support this affirmative defense, only one prosecutor was involved in commencing litigation against the defendant. In other words, the decision to prosecute came down to the decision of a single party for whom there was evidence of possible impropriety. That is simply not the case here."
Google feels Assistant Attorney General Jonathan Kanter brought with him the hopes and dreams of his past private-practice clients who sought to use antitrust laws to hurt the company.
In a 32-page document filed Aug. 31, the company argued it should be entitled to materials detailing Kanter's motives, while claiming 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.
"Any anti-Google bias AAG Kanter may have would not support dismissing the amended complaint because his bias cannot be imputed to the entire DOJ or to the multiple state attorneys general who have signed the amended complaint," Judge Brinkema wrote.
"The 'irreparable damage' would be even more egregious in this case because 'disqualifying' the DOJ would ignore the fact that the investigation into Google's anticompetitive conduct has spanned the tenure of two different assistant attorneys general, who were appointed during the tenure of two different political administrations, as well as two acting assistant attorneys general, and it involved the leadership and assistance of dozens of career prosecutors employed by the Antitrust Division."
Two of the company's defenses caused the DOJ to file a motion for judgment on them, which Brinkema granted. Google argued 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 complained 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 said.
"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."