Former defender of hi-tech companies gets bipartisan support

Jonathan Kanter, nominated to lead the antitrust division of the U.S. Department of Justice, received strong bipartisan support from senators during his confirmation hearing Wednesday, agreeing with their concerns about competition in various industries in addition to technology.

“Liberty depends on opportunity and opportunity depends on free, fair and competitive markets,” he said to the U.S. Senate Judiciary Committee. “The antitrust laws play a vital role in preserving these opportunities.”

Kanter is President Joe Biden’s third nomination for a top antitrust position of a progressive who has called for reining in dominant technology firms. Others were Lina Khan to the Federal Trade Commission and Tim Wu to the National Economic Council.

Kanter, a career antitrust attorney, started out at the FTC and went on to represent large corporations in private practice at Paul, Weiss, Rifkind, Wharton & Garrison LLP before founding a firm specializing in antitrust law. His clients included Amazon, Uber and Microsoft. He’s also represented Microsoft and other companies that have accused Google of anticompetitive behavior.

Lawmakers highlighted issues with antitrust enforcement from the FTC and DOJ that have led to the dominance of a few firms in key industries.

“Some mergers are just too anticompetitive to fix,” said Sen. Amy Klobuchar, D-Minn., mentioning T-Mobile’s acquisition of Sprint through a settlement with the Justice Department.

Sen. Mike Lee, R-Utah., noted a shift in the so-called consumer welfare standard, which directs courts to focus on the effects anticompetitive business practices have on consumers, typically through higher prices.

Kanter has criticized the way in which judges employ the standard, saying they bring in speculative and subjective economic analysis.

“Antitrust laws have to address market realities and market realities have shifted in dramatic ways just over the last 20 to 30 years,” he said. “To be effective, antitrust laws should be enforced in ways that reflect those market realities.”

The FTC in July expanded its authority to challenge violations of antitrust law by altering the standard. It will no longer have to prove companies have harmed consumers to bring investigative and enforcement actions against them.

Kanter largely refrained from discussing specific companies and ways in which he will approach competition issues but emphasized that there’s a problem with corporate dominance.

Nine former chiefs of the Justice Department’s Antitrust Division in September urged the Senate Judiciary Committee in a letter to confirm Kanter’s nomination.