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The Department of Justice recently rested its case against Google in the first major anti-monopoly trial in 25 years. But that case, which involves Google paying third parties for the coveted default setting on browsers and mobile devices, is not the only legal action that DOJ has taken against the search giant.
A second lawsuit, seeking to break up Google’s adtech monopoly, is not yet at the trial stage. But it is already mired in legal challenges over alleged conflicts of interest by both parties. While Google tries to force DOJ Antitrust Division head Jonathan Kanter to recuse himself from the case, the company is also under fire for hiring the law firm that used to represent its direct competitors, whose interests are at stake in the trial.
Though the charges of ethics violations are not symmetrical, the proxy battle lays bare the revolving door between the Justice Department and Big Tech firms, which could have bearing on the case ahead.
The seeds of the fight go back more than three years, when a lawyer named Karen Dunn joined the New York-based BigLaw firm Paul, Weiss, Rifkind, Wharton & Garrison LLP. Dunn sits at the nexus of the Democratic establishment and Big Tech. Described by The Hollywood Reporter as “Apple’s lawyer,” Dunn defended Apple, Amazon, and Facebook in over ten major antitrust-related lawsuits since 2017, including Apple’s recent antitrust case from Epic Games. When then-Amazon CEO Jeff Bezos faced a congressional hearing in the House Antitrust Subcommittee, Dunn prepped him for the questioning.
Dunn also led the legal team that sued the white supremacists who marched in Charlottesville in 2017 for inciting racial violence. But for her corporate clients, Dunn’s calling card as a skilled litigator is also paired with her ties to the inner sanctums of Democratic Party politics. Going back to 2012, she helped prep multiple Democratic presidential nominees for debates alongside Ron Klain, who fittingly managed to then get a high-level job in the Biden administration.
Snagging Dunn was a coup for Paul, Weiss. But there was a problem. One of the firm’s top lawyers represented companies like News Corp, Microsoft, Spotify, and Yelp, which were alleging harm from the imposition of monopolistic power at companies like Google and Apple. If Dunn wanted to establish a beachhead at Paul, Weiss for Big Tech clients, having their rivals also at the firm would present a conflict of interest.
The name of the lawyer who represented Google’s antagonists was Jonathan Kanter. While Kanter practices the neo-Brandeisian school of thought about antitrust, Dunn hails from the establishment side of the antitrust legal bar, which is cozier with corporations and held more sway during the Obama administration.
When Dunn came on board at Paul, Weiss in 2020 and brought her long-standing clients Apple and Amazon, it created tension inside the firm. Kanter was asked to drop his clients, and instead left the firm to start a smaller boutique law firm. Meanwhile, Dunn, along with another partner, John Carlin, turned Paul, Weiss into the go-to spot for Big Tech to fend off an increasingly proactive Biden administration on antitrust enforcement.
When President Biden was staffing his Cabinet, Dunn was considered to lead the Antitrust Division, and would have been Big Tech’s top pick. But the administration went in a different direction, and selected Kanter.
THAT SKIRMISH IS THE BACKDROP to the current dueling petitions in the Google adtech case. Google has persistently pushed for Kanter’s recusal from all matters related to the firm, because Kanter represented Microsoft, Yelp, and other rivals. According to Google, that makes Kanter biased and precludes him from participating in any Google-related lawsuits, including the one filed earlier this year over the tech giant’s monopolization of adtech.
So far, that argument hasn’t held up in the courts or with legal experts. Just last month, a federal judge threw out the disqualification petition against Kanter, calling it “essentially a red herring defense.” As Harvard law professor Laurence Tribe put it: “The only substantial effect of Kanter’s recusal now would be to deny the DOJ access to his insights and years of expertise in prosecuting this case. It’s not hard to see why a company might want that.”
But Google is facing a legal challenge of its own, because it chose to hire Paul, Weiss for the upcoming case. Dunn’s presence at the firm was certainly a contributing factor, given her litigation work for Big Tech and her connections within Democratic politics.
“If you’re Google, she’s like a five-star recruit who’s dialed in at the highest levels of BigLaw and the administration, specifically with the key officials deciding who gets to pursue the Google case,” said Jeff Hauser, the executive director of the Revolving Door Project. RDP recently submitted a Freedom of Information Act request for communications between Paul, Weiss and top DOJ officials.
The proxy battle lays bare the revolving door between the Justice Department and Big Tech firms, which could have bearing on the case ahead.
But there are implications to Dunn and Paul, Weiss representing Google. During Kanter’s time with the firm, it represented Yelp and News Corp. Though neither company is directly signed on to the adtech case, both are parties who have in the past alleged harm by Google’s conduct, and the experiences of both will factor into the upcoming trial.
By hiring its rivals’ law firm, Google could gain access to privileged information about the inner workings of its competitors and wield it to its own advantage in the trial, according to a petition filed by Yelp to disqualify Paul, Weiss from representing Google in the case.
That challenge has also been rejected by the courts so far. Earlier this month, a federal judge allowed Paul, Weiss to remain as Google’s defense attorney, as long as they removed just one lawyer because of his access to confidential information. But the showdown over recusal and disqualification is far from over; both parties are still able to appeal the respective rulings, which could get dragged out.
Paul, Weiss did not respond to a request for comment, though elsewhere it has called Yelp’s petition “factually baseless, legally irrelevant and transparently tactical.”
NUMEROUS ANTITRUST INSIDERS ALSO WARN that Google may still have weapons at its disposal to sabotage the case from inside the Justice Department. Those lines of attack include pressuring DOJ higher-ups to internally take Kanter off the case or otherwise undermine his case against Google in less visible ways, such as siphoning department resources from his trial team.
Meanwhile, the Paul, Weiss petition shines a light on the contradictions of Google’s attempts for over two years to strong-arm Kanter into recusal. As the tech giant tries to prevent the Justice Department from calling on Kanter’s expertise, Google for its part has retained numerous former DOJ officials for their government insights. Two of Google’s in-house lawyers came from DOJ as well.
Dunn still maintains ties at the highest levels of the Justice Department. For one, her husband Brian Netter is the current deputy assistant attorney general at the Civil Division’s Federal Programs Branch.
Dunn’s influence goes all the way up the chain of command to the current attorney general, Merrick Garland. Their relationship dates back to when Dunn clerked for then-Judge Garland out of law school. More recently, she helped Garland prepare for his Senate confirmation hearing. In an interview with Lawdragon, Dunn said Garland even presided over her wedding ceremony and was the first person to visit when she gave birth to her first child.
John Carlin, Dunn’s colleague at Paul, Weiss, was also the right-hand man to Deputy Attorney General Lisa Monaco when he worked at the Justice Department.
In addition to Dunn’s position on the outside, a slew of officials currently inside DOJ have previously worked for Big Tech clients as well.
Monaco consulted directly for Apple and worked as a principal adviser at the high-powered consultancy WestExec, which worked with Google and helped secure their client lucrative defense contracts during the Trump administration.
Before her appointment to the Justice Department, Associate Attorney General Vanita Gupta ran the Leadership Conference and worked closely with Big Tech partners who showered donations on the group. Google’s foundation gave $3 million over Gupta’s tenure and sponsored policy papers published by the Conference.
As the Antitrust Division bears down on the Google case, the challenge for Kanter is not just that his bosses at DOJ have prior ties to Big Tech. It’s that they’ve also worked closely in the past with one of the lead litigators at the firm defending Google against the antitrust lawsuit he’s brought against them. These types of revolving-door entanglements are the reason why outside watchdog groups warned the administration against appointing officials with past corporate ties in the first place.
