Policy

Big Tech defenders dominate the country’s top group of antitrust lawyers

Current and former members say the American Bar Association's antitrust section is overrun with lawyers who have represented Facebook, Google, Amazon and Apple.

Big Tech defenders dominate the country’s top group of antitrust lawyers

The American Bar Association antitrust section has a direct line to government officials.

Photo: Adam Fagen/Flickr

One of the most trusted institutions in the decades-long debate over antitrust law in America is dominated by lawyers tied to the largest tech companies, presenting a possible conflict of interest as policy debates over antitrust enforcement in Washington grow.

In interviews with Protocol, eight current and former members of the American Bar Association's antitrust section, the leading professional association for antitrust lawyers and economists, accused the group of being heavily influenced by corporate lawyers for Big Tech, despite its reputation as a neutral voice in the debate. Several of the group's most prominent members, they say, have cycled between top law firms and government agencies and defended clients including Facebook, Google, Amazon and Apple as they face intensifying antitrust scrutiny.

"The influence of antitrust defense lawyers, which means the interests of basically big companies and other people violating the antitrust laws, is overrepresented at the ABA," said Chris Sagers, an antitrust professor at Cleveland State University's Cleveland-Marshall College of Law and longtime member of the section. Sagers said the issue is less about Big Tech specifically and more about the structure of the field itself, which attracts an abundance of lawyers defending big companies because they make more money.

But lately, those big companies happen to include tech giants that are under investigation for their potentially monopolistic tendencies. A Protocol analysis found that almost half of the authors of the ABA antitrust section's recent presidential transition report, which top policymakers and government officials look to for guidance, either represent Big Tech firms or hold partner positions at law firms that do. One of the co-chairs who led the report, Richard Parker of the law firm Gibson Dunn, confirmed that he has represented Apple and Amazon and still represents some of the top tech firms. Several other authors, including Brad Tennis and Jonathan Jacobson of the firm Wilson Sonsini and Edith Ramirez of the firm Hogan Lovells have represented Google. Debbie Feinstein of the firm Arnold & Porter represented Fitbit in its acquisition by Google. Sidley Austin's Timothy Muris has done work for Amazon and Facebook and Davis Polk's Howard Shelanski represents Facebook.

These ties matter, critics say, because the ABA antitrust section has a direct line to government officials, regularly holding meetings with the Department of Justice and Federal Trade Commission and inviting regulators from around the world to their lavish conferences, said two former government officials. For years, the ABA antitrust section played a pivotal role in selecting the nominees for the FTC and the DOJ's antitrust division. Lawyers pushed for particular members to get into key spots in the government, and many of the group's most active members are former Obama- and Bush-era enforcers. Members of the section are rarely asked to disclose their client lists or potential conflicts of interest, mostly adhering to an honor code that they will not advocate on behalf of their clients while they're members in their personal capacity.

"The antitrust section has positioned itself over the last 20 or 30 years as the neutral organization that's designed to preserve the integrity of the profession," said one member who represents smaller tech companies in their lawsuits against Big Tech. "But what it really is is just a bunch of antitrust lawyers, many of whom have client interests or personal interests, who have guided the section to become the voice of a certain brand of antitrust which is very resistant to any change."

"It's become a device to preserve a way of practicing that benefits antitrust lawyers and allows them to sustain their relevance," the member said.

Gary Zanfagna, the chair of the ABA antitrust section, did not respond to Protocol's request for comment.

William MacLeod of Kelley Drye & Warren, who's the report's other co-chair, told Protocol that he and Parker aimed to represent an array of views when they decided who would help write the report. "We have a wide variety of viewpoints that represent enforcement, represent plaintiffs and represent defendants," said MacLeod. "What we do in these task force reports is we impose a rule that makes sure nobody can take control or unduly influence the report. What goes into that report has to be a consensus of the group." MacLeod said policymakers, regulators and members of Congress have read the report.

Parker said anyone who implies the report is slanted in favor of the tech companies is "wrong" and the authors did not bring up "whether our clients would like [the recommendations] or not."

The report itself avoids taking a side on many controversial issues. Instead, its authors encourage the enforcement agencies to further study prominent topics in antitrust such as Section 5 of the FTC Act, which prohibits unfair or deceptive business practices and the concept of "monopsony," in which a single buyer like Amazon becomes the primary purchaser of goods from a market of sellers.

But the report does weigh in on one of the field's most controversial debates: the consumer welfare standard, the notion that a company's anti-competitive conduct should be assessed only according to how it affects consumers. Courts often use this standard to determine whether a company's business practices violate antitrust laws.

Many prominent antitrust reformers, including Big Tech's loudest rivals, have called for the government to entirely overhaul the consumer welfare standard, pointing out that courts over time have interpreted it narrowly to mean that free services like Google and Facebook cannot function as monopolies because their conduct doesn't raise prices for consumers. The ABA antitrust section's report encourages agencies to conduct serious reviews into the consumer welfare standard, but it concludes: "The Section does not believe, however, that doing so will necessitate material revisions or changes to the consumer welfare standard."

One co-author of the report said the consensus-driven approach made it "somewhat of a useless exercise" and the leaders edited their sections down to become more "anodyne."

"What it says is, 'Gosh there are all these kinds of problems on the defense side and all these rebuttal points. Therefore we have no recommendation and the agencies should study this further,'" the member, who pushes for more aggressive enforcement of the antitrust laws, said.

Former and current members said the ABA antitrust section, above all, tends to advocate for the status quo, balking at overly aggressive calls for reform and often dismissing outside critics like the anti-monopoly think tank Open Markets Institute as impractical. It can be difficult, these people said, to distinguish between corporate lawyers representing clients' interests and establishment lawyers who genuinely believe in a conservative interpretation of the law.

Whatever the reason, the largest tech companies, which pose the most pressing antitrust questions of the day, are noticeably shaping recent conversations within the ABA's antitrust section. The group held its virtual spring conference last week, featuring a range of lawyers from firms representing tech companies and representatives from the companies themselves, according to a schedule obtained by Protocol. Antara Dutta, Amazon's principal economist, chaired a session called "Consumer Protection for Diverse Communities," which included Facebook policy head Pedro Pavón. Anant Raut, Facebook's global head of competition policy, co-moderated a panel called "Hot Topics." And Google's vice president of government affairs, Markham Erickson, participated in a panel on tech firm conduct.

Other topics on the agenda included "Tech Firm Conduct: 'Hypercompetitive' or 'Anticompetitive'?" and "App Stores: An Abuse of Monopoly Power?" The speaker list did include some antitrust reformers, including White House adviser Tim Wu and potential DOJ nominee Jon Sallet, who is currently advising the Colorado attorney general's case against Google. But neither was able to attend due to last-minute conflicts, according to several attendees.

Sandeep Vaheesan, a legal director at Open Markets Institute, participated in a panel at the conference about the future of antitrust. He said he was encouraged by the invitation but does not believe the section will ever be a vehicle for serious antitrust reform. "The ABA is the association of the corporate defense bar," as opposed to being a neutral body, Vaheesan said. "The big tech companies generate a lot of business and a lot of fees for large corporate law firms, so the ABA's institutional views and their events reflect that basic bias and orientation."

Despite these ties, or perhaps because of them, some antitrust hawks see signs that the ABA's antitrust section's power is waning. "For years, a small group of people got to make a lot of choices around antitrust law and they all were part of the ABA antitrust section," said Matt Stoller, the director of research at the American Economic Liberties Project, which advocates for an entirely new antitrust regime in order to address the country's deep economic inequalities. But the times are changing. "What's happened is, we've blown up the debate so it's much broader. Congress has taken back its power. I think that that club is a lot less influential," Stoller said.

The 449-page antitrust report about Big Tech from the House Judiciary Committee, which will likely serve as a basis for future antitrust legislation, did not cite any of the ABA's publications.

Progressives have made antitrust one of their key issue areas, drawing new attention to an area of the law that was seen as a niche issue for years. Biden has already tapped Tim Wu and Lina Khan, left-wing superstars in the antitrust world, to join his administration. Both of them have made it clear that they intend to use all of their influence to rein in the power of the largest tech companies.

But there's some indication that the antitrust section will continue to have some sway under Biden. Former Obama Justice Department official Renata Hesse, who spoke at last week's spring meeting and has long been involved with the section, was reportedly a leading contender to head Biden's DOJ antitrust division. And Sallet, one of the co-authors of the presidential transition report and a heavily involved member of the section, is being vetted to join the Biden administration. Sallet did not respond to requests for comment.

"[The ABA antitrust section] carries weight within the DOJ and the FTC," said Vaheesan. "The agencies are not likely to do something that is going to draw the wrath and ire of the ABA antitrust law section. They still have a great deal of influence — but they don't necessarily have that same monopoly that they once did."

Climate

This carbon capture startup wants to clean up the worst polluters

The founder and CEO of point-source carbon capture company Carbon Clean discusses what the startup has learned, the future of carbon capture technology, as well as the role of companies like his in battling the climate crisis.

Carbon Clean CEO Aniruddha Sharma told Protocol that fossil fuels are necessary, at least in the near term, to lift the living standards of those who don’t have access to cars and electricity.

Photo: Carbon Clean

Carbon capture and storage has taken on increasing importance as companies with stubborn emissions look for new ways to meet their net zero goals. For hard-to-abate industries like cement and steel production, it’s one of the few options that exist to help them get there.

Yet it’s proven incredibly challenging to scale the technology, which captures carbon pollution at the source. U.K.-based company Carbon Clean is leading the charge to bring down costs. This year, it raised a $150 million series C round, which the startup said is the largest-ever funding round for a point-source carbon capture company.

Keep Reading Show less
Michelle Ma

Michelle Ma (@himichellema) is a reporter at Protocol covering climate. Previously, she was a news editor of live journalism and special coverage for The Wall Street Journal. Prior to that, she worked as a staff writer at Wirecutter. She can be reached at mma@protocol.com.

Sponsored Content

Great products are built on strong patents

Experts say robust intellectual property protection is essential to ensure the long-term R&D required to innovate and maintain America's technology leadership.

Every great tech product that you rely on each day, from the smartphone in your pocket to your music streaming service and navigational system in the car, shares one important thing: part of its innovative design is protected by intellectual property (IP) laws.

From 5G to artificial intelligence, IP protection offers a powerful incentive for researchers to create ground-breaking products, and governmental leaders say its protection is an essential part of maintaining US technology leadership. To quote Secretary of Commerce Gina Raimondo: "intellectual property protection is vital for American innovation and entrepreneurship.”

Keep Reading Show less
James Daly
James Daly has a deep knowledge of creating brand voice identity, including understanding various audiences and targeting messaging accordingly. He enjoys commissioning, editing, writing, and business development, particularly in launching new ventures and building passionate audiences. Daly has led teams large and small to multiple awards and quantifiable success through a strategy built on teamwork, passion, fact-checking, intelligence, analytics, and audience growth while meeting budget goals and production deadlines in fast-paced environments. Daly is the Editorial Director of 2030 Media and a contributor at Wired.
Workplace

Why companies cut staff after raising millions

Are tech firms blowing millions in funding just weeks after getting it? Experts say it's more complicated than that.

Bolt, Trade Republic, HomeLight, and Stord all drew attention from funding announcements that happened just weeks or days before layoffs.

Photo: Pulp Photography/Getty Images

Fintech startup Bolt was one of the first tech companies to slash jobs, cutting 250 employees, or a third of its staff, in May. For some workers, the pain of layoffs was a shock not only because they were the first, but also because the cuts came just four months after Bolt had announced a $355 million series E funding round and achieved a peak valuation of $11 billion.

“Bolt employees were blind sided because the CEO was saying just weeks ago how everything is fine,” an anonymous user wrote on the message board Blind. “It has been an extremely rough day for 1/3 of Bolt employees,” another user posted. “Sadly, I was one of them who was let go after getting a pay-raise just a couple of weeks ago.”

Keep Reading Show less
Nat Rubio-Licht

Nat Rubio-Licht is a Los Angeles-based news writer at Protocol. They graduated from Syracuse University with a degree in newspaper and online journalism in May 2020. Prior to joining the team, they worked at the Los Angeles Business Journal as a technology and aerospace reporter.

Climate

The fight to define the carbon offset market's future

The world’s largest carbon offset issuer is fighting a voluntary effort to standardize the industry. And the fate of the climate could hang in the balance.

It has become increasingly clear that scaling the credit market will first require clear standards and transparency.

Kevin Frayer/Getty Images

There’s a major fight brewing over what kind of standards will govern the carbon offset market.

A group of independent experts looking to clean up the market’s checkered record and the biggest carbon credit issuer on the voluntary market is trying to influence efforts to define what counts as a quality credit. The outcome could make or break an industry increasingly central to tech companies meeting their net zero goals.

Keep Reading Show less
Lisa Martine Jenkins

Lisa Martine Jenkins is a senior reporter at Protocol covering climate. Lisa previously wrote for Morning Consult, Chemical Watch and the Associated Press. Lisa is currently based in Brooklyn, and is originally from the Bay Area. Find her on Twitter ( @l_m_j_) or reach out via email (ljenkins@protocol.com).

Policy

White House AI Bill of Rights lacks specific guidance for AI rules

The document unveiled today by the White House Office of Science and Technology Policy is long on tech guidance, but short on restrictions for AI.

While the document provides extensive suggestions for how to incorporate AI rights in technical design, it does not include any recommendations for restrictions on the use of controversial forms of AI.

Photo: Ana Lanza/Unsplash

It was a year in the making, but people eagerly anticipating the White House Bill of Rights for AI will have to continue waiting for concrete recommendations for future AI policy or restrictions.

Instead, the document unveiled today by the White House Office of Science and Technology Policy is legally non-binding and intended to be used as a handbook and a “guide for society” that could someday inform government AI legislation or regulations.

Blueprint for an AI Bill of Rights features a list of five guidelines for protecting people in relation to AI use:

Keep Reading Show less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories
Bulletins