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."