A Star Corporate Lawyer Now Set to Take On Corporate America
Jonathan Kanter is an unlikely economic populist. He has spent most of his career at leading law firms, representing big corporations. And it has …
Jonathan Kanter is an unlikely economic populist.
He has spent most of his career at leading law firms, representing big corporations. And it has been lucrative work. In four years as a partner at Paul, Weiss, Rifkind, Wharton & Garrison, before he departed to start his own firm in 2020, he made more than $20 million, working for clients like Microsoft and News Corporation.
But now Mr. Kanter, 48, is one of the most prominent figures in the accelerating effort among progressives to rein in powerful corporations. President Biden nominated him in July to become the top antitrust enforcement official at the Justice Department, a decision cheered by the left.
How Mr. Kanter reconciles his history of working for big corporations with his progressive stance today is expected to come up during his nomination hearing on Wednesday before the Senate Judiciary Committee. So, too, are questions about the degree to which his past work conflicts with investigations and cases at the Justice Department.
For years, while representing Microsoft and other companies, he has been an anti-Google legal warrior. But if confirmed he will inherit the department’s suit against Google, filed last October, accusing the company of illegally abusing its market power to protect its monopoly in internet search and search advertising.
“Google is the most important case the Justice Department would handle during his tenure,” said William Kovacic, a professor at George Washington University. “Will he be compromised?”
Mr. Kanter, who declined to be interviewed for this article, has said that his work for Microsoft and Yelp, among others, has led him to see the dangers of economic power, epitomized by the rise of the Big Tech companies. It has also nudged him to support more vigorous antitrust enforcement to curb that power.
Progressives have pressed the Biden administration numerous times to choose people without past corporate ties. “We urge you to decline to nominate or hire corporate executives, lobbyists and prominent corporate consultants to serve in high office,” several consumer groups and antimonopoly advocates including MoveOn and Demand Justice wrote in a letter in November.
But they have not objected to Mr. Kanter. His views dovetail with those of other progressives, including Lina Khan, the new chair of the Federal Trade Commission, and Senator Elizabeth Warren of Massachusetts, an advocate for Mr. Kanter. He advised Ms. Warren during her run for president last year.
Ms. Warren called Mr. Kanter’s nomination “tremendous news for workers and consumers” and said he has been “a leader in the fight to check consolidated corporate power.”
Other allies include Tim Wu, the White House senior aide to the president on competition policy, who has argued for breaking up the big technology companies. When Mr. Kanter was nominated, supporters emblazoned “Wu & Khan & Kanter” on coffee mugs, praising them in a play off the name of a law firm.
Many of those progressives argue that antitrust enforcement needs a broad rethinking. They believe the long-dominant measure of whether a company’s market power was harmful — consumer welfare, gauged by product prices — is too narrow and out of step with the modern digital economy.
Instead, they contend that antitrust must be broadened to include the impact of corporate behavior on workers, small businesses and even the flow of news and information, as it shapes public discourse. They want to make it much more difficult for big companies to buy smaller ones that might someday become rivals. And breaking up Big Tech companies, they say, should be considered.
The progressives see themselves more as champions of new thinking than as economic technicians. “It starts with a movement,” Mr. Kanter told a conference at the Center for American Progress in 2017. “And that’s what’s necessary.”
Winning courts over to the progressive agenda seems a stiff challenge. The drift of antitrust decisions for years has generally been to side with corporate defendants. But the progressives reply that is partly because suits have not been brought that would test their ideas about the behavior of digital markets and the need for more vigorous antitrust enforcement.
In that campaign, they say, Mr. Kanter’s legal experience and skill will be assets.
He is widely respected as a talented lawyer, and his nomination has drawn bipartisan support. Nine former heads of the Justice Department’s antitrust division sent a joint letter to the Senate Judiciary Committee, urging the Senate to confirm Mr. Kanter. They include Joel Klein, who held the post in the Clinton administration, and Christine Varney, who served in the Obama administration. But Republicans also joined the endorsement, including Charles F. Rule from the Reagan administration and Makan Delrahim from the Trump administration.
“I don’t agree with him,” Mr. Rule said in an interview. “But he has the ideology they want, and he is in the top echelon of antitrust lawyers of his generation.”
Mr. Kanter left Paul, Weiss in 2020. His growing ties to companies that had competitive complaints against Big Tech companies increasingly brought up conflicts of interest for the firm. While Google is not a Paul, Weiss client, Apple, for example, is.
If he joins the Justice Department, the issue of conflicts would probably be one of appearances rather than something that would require Mr. Kanter to recuse himself from the Google case, legal experts say. It is not a disqualifying conflict, they say, because the Justice Department’s role is as a prosecutor and Mr. Kanter is not switching sides, just becoming a Google adversary on behalf of the government.
But it could be an issue that Google raises when the suit goes to trial. Similarly, legal experts view Amazon’s request that Ms. Khan, an outspoken critic of the e-commerce giant, recuse herself from F.T.C. investigations of the company as a public-relations tactic now — and perhaps an issue to raise in court later.
Where Mr. Kanter would most likely have to recuse himself, they say, is if the Justice Department investigated complaints against Microsoft, which he did represent as a corporate defense lawyer.
Microsoft, the target of a federal antitrust suit in the 1990s, has largely escaped the scrutiny directed at its Big Tech peers so far. But last year, Slack Technologies filed a complaint against Microsoft with the European Commission, arguing that the tech giant illegally tied its collaboration software, Microsoft Teams, to its dominant Office productivity software to try to crush Slack, an upstart rival.
“I think Kanter’s prior experience will be an asset, not a drawback,” said Charlotte Slaiman, competition policy director for Public Knowledge, a consumer advocacy group.
Mr. Kanter first began studying Google at Microsoft’s behest, when Google’s planned acquisition of DoubleClick, an advertising tech company, was being reviewed by the Federal Trade Commission in 2007. Microsoft and Mr. Kanter argued that with DoubleClick, Google would have a powerful tool to leverage its strong position in search and search advertising into online display ads — and that the merger should be blocked.
The F.T.C. and the European Commission both approved Google’s $3.1 billion purchase of DoubleClick.
Later, while also representing Microsoft, Mr. Kanter urged the F.T.C. to file an antitrust suit against Google. In 2013, the F.T.C. decided against it.
Both those were setbacks for Mr. Kanter, and he came to believe antitrust was not keeping up with the changes in the economy.
In Senate testimony in 2018, for example, Mr. Kanter said, “Policymakers should vigorously explore new questions in antitrust to ensure that U.S. antitrust law remains relevant to the realities of today’s economy and society.”
Mr. Kanter increasingly spoke out, not only in congressional testimony and to left-leaning groups, but even at the conservative Federalist Society in 2017.
Former colleagues often do not share Mr. Kanter’s views, but they respect him. Mr. Rule, the former Reagan administration official, worked with Mr. Kanter for nearly two decades, at three law firms. “I disagree with his ideology, but his beliefs are genuine,” said Mr. Rule, a partner at Paul, Weiss.