Senate Confirms Jonathan Kanter to Head DOJ Antitrust Division

On November 16, 2021, Jonathan Kanter was confirmed as the new Assistant Attorney General of the Department of Justice Antitrust Division after a bipartisan Senate voted 68-29 in favor of the appointment.  His appointment is yet another signal that the Biden administration will aggressively enforce antitrust laws and aligns with President Biden’s July 9, 2021 “Executive Order on Promoting Competition in the American Economy,” which we covered in detail in a series of posts here.

Kanter has been a prominent and frequent critic of Big Tech for alleged anti-competitive conduct and will lead the agency amid bipartisan calls for more aggressive enforcement against large technology companies.  Among Kanter’s new responsibilities will be oversight of the DOJ’s landmark lawsuit against Google alleging an illegal monopoly in the online search and advertising markets, filed in October 2020 by his predecessor.  Shortly after Kanter’s confirmation, Google wrote to the Department of Justice to request a review of whether Kanter should be recused from federal antitrust investigations of Google given his previous litigation against the company in private practice and his outspoken criticism of the company.  Kanter began his career at the Federal Trade Commission before entering private practice and then heading his own plaintiff-side antitrust boutique, which represented clients in disputes against Google, among other matters.

Kanter’s appointment comes on the heels of the advancement of other outspoken Big Tech critics to antitrust positions—including Lina Khan as Federal Trade Commission chair and Timothy Wu who was appointed to the National Economic Council as Special Assistant to the President for Technology and Competition Policy—who are leading advocates of the view that harm to consumers through higher prices should not be the only relevant factor in enforcing antitrust laws.  Chair Khan congratulated Kanter on his confirmation, stating that the “FTC and DOJ Antitrust Division are critical partners in vigorously enforcing the antitrust laws.”

In his first move as agency head, Kanter sued to block the merger of two sugar companies, alleging that if the acquisition were allowed to proceed, American businesses and consumers would pay more for sugar.