Top Biden antitrust enforcers say their work inside the courtroom laid a foundation with sticking power for wielding century-old competition laws to police corporate concentration at scale.
A push to ramp up enforcement was an “investment in the future,” said Hetal Doshi, who led the Department of Justice’s antitrust litigation program, created in 2023 to increase the division’s capacity to bring cases to trial.
“When we invest in the future by hiring the right personnel, engaging in the right training and partnership,” Doshi said in an interview with Bloomberg Law, “that prepares this program and the division to meet the moment again, so that we’re never in a place where resources or expertise or capacity are a gating issue in terms of enforcement.”
Recently departed DOJ antitrust chief Jonathan Kanter and his counterpart at the Federal Trade Commission, Chair Lina Khan, sought to reinvigorate antitrust after decades of what they argued was lax enforcement that contributed to a highly consolidated economy and hurt Americans.
Doshi, who reported to Kanter since 2022, leaves her post Friday with the division involved in nine ongoing civil court matters. They include actions against such corporate giants as
That caseload, which has no modern-era equivalent, garnered a key court decision branding Google a search-engine monopolist.
Donald Trump’s election victory in November threatens to upend that agenda. It’s unclear what the new administration will want do with the litigation program.
Still, Trump has indicated in public comments an interest in keeping pressure on Big Tech and taking aim at the health-care industry.
Those priorities would be well-served by the Biden DOJ’s efforts to add experienced trial counsel and give more lawyers the litigation chops necessary to go toe-to-toe with top defense firms, Kanter said.
“What we’ve tried to do is demonstrate that this program works,” Kanter, who now lists his occupation as “professional intermediate skier” on LinkedIn, told Bloomberg Law in an interview.
“If new leadership is interested in strong enforcement, we have a strong record and a very professional group of litigators and a system for deploying those litigators that will be attractive,” he said.
‘Prosecutor’s Eye’
In addition to scaling up, Doshi said a core focus of the last two years was bringing a “prosecutor’s eye” to antitrust, where cases often require complex economic analysis.
Doshi entered the post after cutting her teeth as an assistant US attorney in Colorado, where she led investigations into banks such as
“Complexity is your enemy as a plaintiff,” said John Walsh, a former US Attorney in Colorado who gave Doshi her first job at the DOJ. “Hetal knows how to focus theories in a way that led to successful outcomes.”
Still, Doshi’s mandate to bring that prosecutorial lens to several cases at once marked a big lift for the division, which Kanter said had historically litigated one or two cases at a time.
A core component of that push came in the hires of experienced trial lawyers such as Julia Tarver Wood, an ex-colleague of Kanter’s at Paul Weiss who led the DOJ’s case against Google over its dominance in advertising technology; and Aaron Teitelbaum, an ex-federal prosecutor who tried the case alongside Wood.
Other hires included former Winston & Strawn partner David Dahlquist, who has played a lead role in the Google search case, and Edward Duffy, a former Reed Smith partner who headed the successful case blocking JetBlue Airways Corp.’s proposed $3.8 billion acquisition of Spirit Airlines Inc.
“We viewed that as not only important to winning the next generation of cases and having a deterrent effect” but also establishing the department as a “formidable opponent,” Kanter said.
The initiative also gave dozens of lawyers experience in the “art” of trying cases, he added.
Legal Theories
The division suffered some courtroom losses during Kanter’s first year in charge, and the litigation program launched amid some “choppy waters,” Walsh said.
It has since scored significant victories: the Google search ruling, as well as a November 2022 decision blocking Penguin Random House’s proposed $2.18 billion buy of rival Simon & Schuster, which supported its focus on the alleged harms a deal can have in the labor market.
More recently, a federal judge in Washington state embraced a theory the DOJ pushed in friend-of-the-court briefs that the use of AI to collude is inherently unlawful.
That came as the division separately pursues a first-of-its-kind case accusing RealPage Inc. and seven landlords over an “algorithmic pricing scheme” in the housing rental market.
A decision is pending in the Google ad tech case, and enforcers are preparing for hearings in April over the proposed remedy in the Google search matter.
What’s Ahead
Google’s cases are years away from being fully resolved, which creates questions about how new political leadership will handle them.
Trump has said he will tap Gail Slater, a policy adviser to Vice President-elect JD Vance who is viewed as a pro-enforcement populist Republican, to head the antitrust division. But a view taking shape on Wall Street is that the antitrust environment will be more favorable.
“While continued scrutiny of Big Tech is expected, enforcement will look different,” Richard Powers, who helped create the antitrust litigation program before leaving DOJ in 2022, said.
“There’s probably going to be a hard look at the M&A approach from the Biden administration,” added Powers, now a partner at Kressin Meador Powers LLC.
Doshi touted the litigation program’s work as a demonstration of the “enduring nature” and breadth of the nation’s antitrust laws. She’s confident that will have benefits beyond one administration.
“The legacy here will be one about the work,” she said. “A lot of these litigators are going to stick around, they’re going to continue to do hard work.”
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