What can’t Jonathan Kanter do?

Biden's nominee to lead the DOJ's antitrust section may face calls to remove himself from issues as weighty as cracking down on Google and Apple.

Jonathan Kanter

DOJ antitrust nominee Jonathan Kanter's work as a corporate lawyer may require him to recuse himself from certain cases.

Photo: New America/Flickr

Jonathan Kanter, President Joe Biden's nominee to run the Justice Department's antitrust division, has been a favorite of progressives, competitors to Big Tech companies and even some Republicans due to his longtime criticism of companies like Google.

But his prior work as a corporate lawyer going after tech giants may require him to recuse himself from some of the DOJ's marquee investigations and cases, including those involving Google and Apple.

Requests for recusal have recently emerged as one of Big Tech's weapons as it fights rising antitrust scrutiny. Facebook and Amazon have already pushed for Federal Trade Commission chair Lina Khan to remove herself from matters involving their companies, citing her writing, her work with think tanks and her time as a congressional staffer.

Yet Kanter may have done even more to invite antitrust scrutiny on Big Tech — and the rules he faces at the DOJ may be tighter.

As a lawyer for Yelp, News Corp. and other companies that frequently criticize Big Tech, Kanter eagerly pushed government enforcers to file a range of competition lawsuits, especially against Google. He often argued that the company privileged its own properties over those of competitors like Yelp in search results and criticized Google's dominance in the online ad market. In a 2018 testimony before the Senate, he argued "that concentrated economic power could pose as great a threat to liberty as political power" and scolded courts and government enforcers who narrowed deliberately broad competition laws.

The Department of Justice's own lawsuit, filed last October, makes a slightly different case against Google, focusing on the company's alleged monopolization of online search. But the issue Yelp's describing — involving alleged search bias — did make it into a multistate complaint that was filed in December, and courts are now consolidating that case with the federal one.

Under federal regulations, government appointees who have worked on "a particular matter involving specific parties" under their official remit must recuse themselves for one year. On his first day in office, Biden also issued an ethics order requiring appointees to extend that cooling off period to two years. The rules already raised concerns among White House ethics officials about nominees like Kanter, according to an April report.

"If he was representing Yelp in the same or a substantially related complaint, then you wouldn't want it to appear that he was carrying water for any particular former client," said Virginia Canter, a former lawyer in the Clinton and Obama White Houses who is now chief ethics counsel of the transparency group Citizens for Responsibility and Ethics in Washington. "There should be no question about whether or not the public interest is being served."

In addition, last year, Kanter left as co-chair of the antitrust practice at Paul, Weiss, Rifkind, Wharton & Garrison. The firm is now representing Apple in a lawsuit by Epic Games, among other matters. The two-year restriction in Biden's ethics order also extend to clients of recent former employers, and the Justice Department is indeed investigating Apple. As if that weren't complicated enough, Kanter himself has represented Apple complainants like Spotify.

Progressives who supported Kanter cheered his long-term antagonism of Big Tech and support of smaller competitors like Yelp. Yet Kanter's former firm has also represented Mastercard, Cigna and other big companies in competition matters. Nearly a decade ago, at a prior firm, Kanter even won an award for his work helping Microsoft navigate its acquisition of Skype.

His work for complainants against Big Tech doesn't automatically require recusal. Canter and others said the administration will probably weigh how closely his own advocacy mirrored the DOJ's cases, as well as other variables, like whether his former clients are witnesses, various bar rules, appearances of conflict and whether he's really switching sides or merely switching roles on the same side.

"You really have to look at all the particulars," Canter said. "You don't want to knock somebody out if you don't have to."

Biden's order also allows for waivers when "the literal application of the restriction is inconsistent with the purposes of the restriction." That, some say, could cover someone like Kanter transitioning from helping the government as a private lawyer to overseeing the government's work. Waivers also need to be in the public interest, including "exigent circumstances relating to ... the economy."

Recusals from matters involving Big Tech, however, would not be unprecedented: The head of the antitrust division under Trump, Makan Delrahim, eventually recused himself from the Google investigation. He'd lobbied for the company's acquisition of DoubleClick more than a decade earlier.

Asked whether recusals or a waiver were necessary, a White House official would say only that the administration is "confident moving forward with Kanter for the position given his track record and expertise." Google declined to say whether it planned to seek Kanter's recusal.

Some defenders of competition enforcement have said that Facebook and Amazon's calls for Khan's recusal at the FTC are really just efforts to escape legal scrutiny. Big Tech critics argue that rather than citing any actual conflict of interest, like switching from the plaintiff's side to the defense's in a case, these companies are more or less complaining about the very traits that make Khan qualified for the job.

Some have said the same about Kanter, particularly following a POLITICO story on potential administration concerns about nominees with histories like his. Jeff Hauser, a former Justice Department antitrust lawyer who tracks corporate officials in government, tweeted at the time that Kanter will help the Justice Department, as his private sector experience makes him a better choice for the job and is "very different from defending corporations accused of violating antitrust law."

Some Kanter defenders acknowledged tech companies could raise concerns as well, although certain issues may be moot. The U.S. case against Google has already launched, for instance, and the two-year ban could expire before a trial, which is scheduled for late 2023.

Even if Kanter does have to recuse himself, "DOJ can still do aggressive work against these companies," said Alex Harman, competition policy advocate at the liberal group Public Citizen, which has backed Kanter.

Unlike the FTC, an independent agency where partisan commissioners vote, the Justice Department is supposed to follow the president's vision of expanded competition enforcement, Harman noted. Even if Kanter didn't participate in litigation strategy or potential settlement negotiations, he could still point the division toward a harder line on concessions, more aggressive merger challenges, expanded theories of harm and more plaintiff-friendly trends in market definition. Whatever department lawyer would oversee the case in the meantime would likely be well aware of the new course that the division chief had set.

"It's a lot of nothing when somebody has to recuse at an agency," Harman said, although he added it might well be necessary. "He's there because of his experience and his viewpoint, and if he hadn't been working, he wouldn't have this experience."


The (gaming) clones never stopped attacking

Clones keep getting through app review despite App Store rules about copying. It's a sign of the weaknesses in mobile app stores — and the weakness in Big Tech’s after-the-fact moderation approach.

Clones aren't always illegal, but they are widely despised.

Image: Disney

Two of the most fundamental tenets of the mobile gaming market:

  1. Free always wins.
  2. No good gaming idea is safe from copycats.

In combination, these two rules help produce what the industry calls a clone. Most often, clones are low-effort, ripped-off versions of popular games that monetize in not-so-savory fashion while drawing in players with a price tag of zero.

Keep Reading Show less
Nick Statt
Nick Statt is Protocol's video game reporter. Prior to joining Protocol, he was news editor at The Verge covering the gaming industry, mobile apps and antitrust out of San Francisco, in addition to managing coverage of Silicon Valley tech giants and startups. He now resides in Rochester, New York, home of the garbage plate and, completely coincidentally, the World Video Game Hall of Fame. He can be reached at nstatt@protocol.com.
Sponsored Content

A CCO’s viewpoint on top enterprise priorities in 2022

The 2022 non-predictions guide to what your enterprise is working on starting this week

As Honeywell’s global chief commercial officer, I am privileged to have the vantage point of seeing the demands, challenges and dynamics that customers across the many sectors we cater to are experiencing and sharing.

This past year has brought upon all businesses and enterprises an unparalleled change and challenge. This was the case at Honeywell, for example, a company with a legacy in innovation and technology for over a century. When I joined the company just months before the pandemic hit we were already in the midst of an intense transformation under the leadership of CEO Darius Adamczyk. This transformation spanned our portfolio and business units. We were already actively working on products and solutions in advanced phases of rollouts that the world has shown a need and demand for pre-pandemic. Those included solutions in edge intelligence, remote operations, quantum computing, warehouse automation, building technologies, safety and health monitoring and of course ESG and climate tech which was based on our exceptional success over the previous decade.

Keep Reading Show less
Jeff Kimbell
Jeff Kimbell is Senior Vice President and Chief Commercial Officer at Honeywell. In this role, he has broad responsibilities to drive organic growth by enhancing global sales and marketing capabilities. Jeff has nearly three decades of leadership experience. Prior to joining Honeywell in 2019, Jeff served as a Partner in the Transformation Practice at McKinsey & Company, where he worked with companies facing operational and financial challenges and undergoing “good to great” transformations. Before that, he was an Operating Partner at Silver Lake Partners, a global leader in technology and held a similar position at Cerberus Capital LP. Jeff started his career as a Manufacturing Team Manager and Engineering Project Manager at Procter & Gamble before becoming a strategy consultant at Bain & Company and holding executive roles at Dell EMC and Transamerica Corporation. Jeff earned a B.S. in electrical engineering at Kansas State University and an M.B.A. at Dartmouth College.

Beat Saber, Bored Apes and more: What to do this weekend

Don't know what to do this weekend? We've got you covered.

Images: Ross Belot/Flickr; IGBD; BAYC

This week we’re listening to “Harvest Moon” on repeat; burning some calories playing Beat Saber; and learning all about the artist behind the goofy ape pics that everyone (including Gwyneth Paltrow?) is talking about.

Neil Young: Off Spotify? No problem.

Neil Young removed his music from Spotify this week, but countless recordings are still available on YouTube, including this 1971 video of him performing “Heart of Gold” in front of a live studio audience, complete with some charming impromptu banter. And while you’re there, scroll down and read a few of the top-rated comments. I promise you won’t be disappointed.

'Archive 81': Not based on a book, but on a podcast!

Netflix’s latest hit show is a supernatural mystery horror mini-series, and I have to admit that I was on the fence about it many times, in part because the plot just often didn’t add up. But then the main character, Dan the film buff and archivist, would put on his gloves, get in the zone, and meticulously restore a severely damaged, decades old video tape, and proceed to look for some meaning beyond the images. That ritual, and the sentiment that we produce, consume and collect media for something more than meets the eye, ultimately saved the show, despite some shortcomings.

'Secrets of Sulphur Springs': Season 2 is out now

If you’re looking for a mystery that's a little more family-friendly, give this show about a haunted hotel, time travel, and kids growing up in a world that their parents don’t fully understand a try. Season 2 dropped on Disney+ this month, and it not only includes a lot more time travel mysteries, but even uses the show’s time machine to tackle subjects as serious as reparations.

The artist behind those Bored Apes

Remember how NFTs are supposed to generate royalties with every resale, and thus support artists better than any of their existing revenue streams? Seneca, the artist who was instrumental in creating those iconic apes for the Bored Ape Yacht Club, wasn’t able to share details about her compensation in this Rolling Stone profile, but it sure sounds like she is not getting her fair share.

Beat Saber: Update incoming

Years later, Beat Saber remains my favorite VR game, which is why I was very excited to see a teaser video for cascading blocks, which could be arriving any day now. Time to bust out the Quest for some practice time this weekend!

Correction: Story has been updated to correct the spelling of Gwyneth Paltrow's name. This story was updated Jan. 28, 2022.

Janko Roettgers

Janko Roettgers (@jank0) is a senior reporter at Protocol, reporting on the shifting power dynamics between tech, media, and entertainment, including the impact of new technologies. Previously, Janko was Variety's first-ever technology writer in San Francisco, where he covered big tech and emerging technologies. He has reported for Gigaom, Frankfurter Rundschau, Berliner Zeitung, and ORF, among others. He has written three books on consumer cord-cutting and online music and co-edited an anthology on internet subcultures. He lives with his family in Oakland.

Boost 2

Can Matt Mullenweg save the internet?

He's turning Automattic into a different kind of tech giant. But can he take on the trillion-dollar walled gardens and give the internet back to the people?

Matt Mullenweg, CEO of Automattic and founder of WordPress, poses for Protocol at his home in Houston, Texas.
Photo: Arturo Olmos for Protocol

In the early days of the pandemic, Matt Mullenweg didn't move to a compound in Hawaii, bug out to a bunker in New Zealand or head to Miami and start shilling for crypto. No, in the early days of the pandemic, Mullenweg bought an RV. He drove it all over the country, bouncing between Houston and San Francisco and Jackson Hole with plenty of stops in national parks. In between, he started doing some tinkering.

The tinkering is a part-time gig: Most of Mullenweg’s time is spent as CEO of Automattic, one of the web’s largest platforms. It’s best known as the company that runs WordPress.com, the hosted version of the blogging platform that powers about 43% of the websites on the internet. Since WordPress is open-source software, no company technically owns it, but Automattic provides tools and services and oversees most of the WordPress-powered internet. It’s also the owner of the booming ecommerce platform WooCommerce, Day One, the analytics tool Parse.ly and the podcast app Pocket Casts. Oh, and Tumblr. And Simplenote. And many others. That makes Mullenweg one of the most powerful CEOs in tech, and one of the most important voices in the debate over the future of the internet.

Keep Reading Show less
David Pierce

David Pierce ( @pierce) is Protocol's editorial director. Prior to joining Protocol, he was a columnist at The Wall Street Journal, a senior writer with Wired, and deputy editor at The Verge. He owns all the phones.


Mental health at work is still taboo. Here's how to make it easier.

Tech leaders, HR experts and organizational psychologists share tips for how to destigmatize mental health at work.

How to de-stigmatize mental health at work, according to experts.

Illustration: Christopher T. Fong/Protocol

When the pandemic started, HR software startup Phenom knew that its employees were going to need mental health support. So it started offering a meditation program, as well as a counselor available for therapy sessions.

To Chief People Officer Brad Goldoor’s surprise, utilization of these benefits was very low, starting at about a 10% take rate and eventually weaning off. His diagnosis: People still aren’t fully comfortable opening up about mental health, and they’re especially not comfortable engaging with their employer on the topic.

Keep Reading Show less
Michelle Ma

Michelle Ma (@himichellema) is a reporter at Protocol, where she writes about management, leadership and workplace issues in tech. 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.


Robinhood's regulatory troubles are just the tip of the iceberg

It’s easiest to blame Robinhood’s troubles on regulatory fallout, but its those troubles have obscured the larger issue: The company lacks an enduring competitive edge.

A crypto comeback might go a long way to help Robinhood’s revenue

Image: Olena Panasovska / Alex Muravev / Protocol

It’s been a full year since Robinhood weathered the memestock storm, and the company is now in much worse shape than many of us would have guessed back in January 2021. After announcing its Q4 earnings last night, Robinhood’s stock plunged into the single digits — just below $10 — down from a recent high of $70 in August 2021. That means Robinhood’s valuation dropped more than 84% in less than six months.

Investor confidence won’t be bolstered much by yesterday’s earnings results. Total net revenues dropped to $363 million from $365 million in the preceding quarter. In the quarter before that, Robinhood reported a much better $565 million in net revenue. Net losses were bad but not quite as bad as before: Robinhood reported a $423 million net loss in Q4, an improvement from the $1.3 billion net loss in Q3 2021. One of the most shocking data points: Average revenue per user dropped to $64, down from a recent high of $137 in Q1 2021. At the same time, Robinhood actually reported a decrease in monthly active users, from 18.9 million in Q3 2021 to 17.3 million in Q4 2021.

Keep Reading Show less
Hirsh Chitkara

Hirsh Chitkara ( @HirshChitkara) is a is a reporter at Protocol focused on the intersection of politics, technology and society. Before joining Protocol, he helped write a daily newsletter at Insider that covered all things Big Tech. He's based in New York and can be reached at hchitkara@protocol.com.

Latest Stories