WASHINGTON – A top U.S. Chamber of Commerce official points to what he calls a “concerning” shift in antitrust perspectives under Assistant Attorney General Jonathan Kanter.
Sean Heather argues that Kanter is moving away from “empirical economic analysis,” and is possibly undermining consumer interests. He said this trend is “at times” increasingly embraced by many state attorney generals. However, U.S. courts do not seem to yet be embracing these views, emphasizing the importance of evidence in this litigation.
“Evidence is at the core of litigation," said Heather, the Chamber's senior vice president of international regulatory affairs and antitrust. "Without evidence, a court can’t separate fact from fiction,”
(Editor's note: The U.S. Chamber Institute for Legal Reform owns Legal Newsline.)
The state attorneys generals' antitrust case against Google received a major reality check in early August when the district court tossed out large portions of the complaint and ruled that the government’s accusations “rely not on evidence but almost entirely on the opinion and speculation of its expert.”
Google has accused Kanter of having a "deep-seated bias" against the company that violates its right to a neutral prosecutor. The company claims the Department of Justice is pushing antitrust litigation on behalf of federal agencies that do not want it, to help private companies with connections to Assistant Attorney General Jonathan Kanter.
On Aug. 31, Google filed its 32-page document with a Virginia federal court saying it should be entitled to materials detailing Kanter’s motives. The company said the federal agencies the DOJ claims to represent in reality had no interest in bringing a lawsuit, though companies the assistant attorney general previously represented while in private practice do. These companies include Microsoft, Yelp, and NewsCorp, many of Google’s current competitors.
"These facts demonstrate that the federal agencies are not the parties on whose behalf DOJ is bringing this case," the company's lawyers told Legal Newsline. "So on whose behalf is DOJ bringing this lawsuit?"
Heather said another concerning indication from the government’s antitrust enforcers in the Google trial when the DOJ motioned the court to prevent Google from showing evidence of pro-competitive effects on its conduct.
Critics argue this could shift the balance unfairly in favor of the government in future antitrust cases by potentially infringing on due process rights and promoting governmental overreach.
Heather said that despite this the court rejected the DOJ’s “attempts to tip the scales” again, emphasizing constitutional due process rights and the importance of evidence over theory.
The lawsuit against Alphabet and its Google search engine was led by Colorado Attorney General Philip J. Weiser and a bipartisan group of attorney generals from 28 different states. They aimed to break what they claim is an illegal monopoly in the search market.
Kanter has been serving as the Assistant Attorney General for the DOJ's Antitrust Division since Nov. 16, 2021, with a prior background as an antitrust attorney at the Federal Trade Commission and in private practice.
In his role at the U.S. Chamber of Commerce, Heather oversees global regulatory cooperation and antitrust policy.