DOJ Trots Out Corporate, Tech Veterans in Google Antitrust Probe (1)

Oct. 21, 2020, 6:55 PMUpdated: Oct. 21, 2020, 8:03 PM

The Justice Department, in its antitrust legal battle against Google, is lining up against high-profile BigLaw attorneys hired by the search giant.

Makan Delrahim, the Justice Department’s antitrust chief, recused himself earlier this year in the case, citing potential conflicts of interest in his prior work as a private sector attorney.

A group of DOJ attorneys—many of them specializing in the intersection of technology and antitrust law—instead will spearhead its effort to combat what the department calls anti-competitive practices that harm consumers and the advertising market.

They bring a wealth of experience handling complicated mergers—both as regulators opposing deals and BigLaw advocates familiar with Beltway processes in approving corporate acquisitions.

‘Highly Aggressive’ Lawyer

Leading the government’s action is Kenneth Dintzer, a longtime trial attorney in the DOJ’s Civil Division.

Dintzer, who’s currently deputy director of the Civil Division’s Commercial Litigation Branch, has handled numerous high-profile cases for the department over more than 20 years, including a $40 billion lawsuit filed against the U.S. by former AIG chief executive Maurice “Hank” Greenberg.

Dintzer squared off against famed litigator David Boies in that case, brought over the government’s role in the taxpayer-funded bailout of the financial giant. Boies was the chief litigator for the government in its prominent antitrust lawsuit against Microsoft.

“The Division has tremendous confidence in the hardworking litigation team led by Ken Dintzer, one of the Department’s most experienced and talented trial lawyers,” Alex Okuliar, Deputy Assistant Attorney General in the Antitrust Division, told reporters on a call Tuesday.

Dintzer also led the government’s antitrust prosecution of General Electric Co. for allegedly anticompetitive medical imaging supply arrangements with hospitals in the mid-1990s.

But in his current role, Dintzer largely brings and defends against money damages claims on behalf of the U.S., often at the Court of Federal Claims.

His appointment as lead counsel in the Google lawsuit “is a little bit of a surprise because he’s not with the antitrust division,” said Roger Marzulla of Marzulla Law LLC, who led the DOJ’s Environment & Natural Resources Division in the 1980s.

“Ken is certainly a competent, highly aggressive trial lawyer,” he said. “He’s hard-working and he does his homework.”

Marzulla also noted Dintzer mostly defends cases. “So that’s sort of another break here with expectations,” he said.

Still, Dintzer is “certainly familiar with and will use the special tools that are available to the federal government,” he said, recalling dealerships’ lawsuits against the government over auto bailout. Representing Chrysler dealerships, he argued against Dintzer.

Big Law, FTC Ties

Alexander Okuliar is relatively new to the DOJ, having joined in January as deputy assistant attorney general.

Okuliar, who helps lead civil merger and conduct investigations and litigation, brings roughly 20 years experience in antitrust law.

In just a few months at DOJ, he has worked on a number of the big-name antitrust cases. Since January, Okuliar has represented the U.S. in separate antitrust cases against defense giants General Dynamics Corp. and the Raytheon Company, which later merged with the United Technologies Corp.

This isn’t Okuliar’s first stint at the agency. From 2010 to 2012, he served as a trial attorney in the technology and financial services section of the antitrust division. He spearheaded investigations including the proposed merger between the New York Stock Exchange Euronext and the Frankfurt-based Deutsche Börse, a deal that was later abandoned.

Okuliar has served in leadership roles at the Federalist Society and the ABA Antitrust Law Section. Before rejoining the Justice Department this year, he was an antitrust partner at Orrick, Herrington & Sutcliffe in Washington, focusing on antitrust matters with an emphasis on technology and data issues.

From 2012 to 2015, he was attorney adviser to then-Commissioner Maureen Ohlhausen of the Federal Trade Commission. He and Ohlhausen penned a 2015 article for the Antitrust Law Journal that argued competition law wasn’t the best avenue for protecting user privacy.

“Attempting to unify the competition and consumer protection laws creates needless risks for the Internet economy and could destabilize the modern consensus on antitrust analysis, again pulling it away from rigorous, scientific methods developed in the last few decades and reverting back to the influence of subjective noncompetition factors,” they wrote.

He received his bachelor’s at the University of Pennsylvania. A 1999 alumnus of Vanderbilt Law School, Okuliar worked after graduation as an associate at Vinson & Elkins. He then joined O’Melveny & Myers, where he litigated antitrust and competition cases.

Antitrust Defense Litigator

Ryan Shores also is relatively new to the DOJ, but his arrival was one of the department’s many deliberate moves to mount the Google case.

Shores was tapped by Deputy Attorney General Jeffrey Rosen in October 2019 to help lead the DOJ probes of big tech companies.

As associate deputy attorney general and senior adviser for technology industries, Shores brings more than a decade of antitrust defense to his role, representing major financial institutions, defense contractors, and consumer products companies.

Described as “careful, thoughtful and practical,” Shores has a litigator’s eye for preparing for both a skeptical judge and a good defense team’s maneuvers for poking holes into a prosecutor’s case, said David Higbee, a Shearman & Sterling LLP partner who worked with Shores for more than 15 years.

Shores joined the Justice Department after a three-year stint as a partner in Shearman & Sterling LLP’s litigation and antitrust practice. He represented Bank of America, Bank of Montreal, Capital One, and Merrill Lynch in private litigation, as well as defense contractor Booz Allen Hamilton Holding Corp., in private antitrust litigation.

He also helped represent 1-800-Contacts in its petition review of a 2018 Federal Trade Commission order finding the company had engaged in anticompetitive behavior related to online advertising and online searches. Shores had requested to present oral arguments on the contact lens retailer’s behalf just a month before joining the DOJ.

That case helped expose Shores to the power of Google search terms, said Higbee, a former deputy assistant attorney general and chief of staff for the DOJ Antitrust Division.

During his time at Shearman, Shores also helped pen multi-attorney articles on issues related to online platforms’ abuse of market dominance, the impact on online pricing of distribution agreements between manufacturers and retailers, and antitrust enforcement under the Trump Administration.

A 2003 graduate of the University of Virginia Law School, Shores clerked for former U.S. Supreme Court Chief Justice William Rehnquist, as well as Judge Kenneth Ripple of the U.S. Court of Appeals for the Seventh Circuit.

He joined Hunton & Williams LLP’s antitrust litigation practice in 2005 immediately after his Supreme Court clerkship.

(Adds commentary on Shores)

To contact the reporters on this story: Lydia Beyoud in Washington at lbeyoud@bloomberglaw.com; Jake Holland in Washington at jholland@bloombergindustry.com; Jacob Rund in Washington at jrund@bloomberglaw.com

To contact the editor responsible for this story: Roger Yu at ryu@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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