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Google bolsters its legal team with former DOJ workers as it faces antitrust charges

March 17, 2023
minute read

Several former Department of Justice employees have been added to the legal team at Alphabet as it battles two separate antitrust lawsuits that the agency has filed against Google, according to public profiles of employees.

Both its internal team and the outside counsel companies it hires are made up of former DOJ personnel. According to publicly available information, such as social media accounts, the corporation has hired three former DOJ officials into regulatory posts since May 2022, and one before that in 2021. Also, Google employs four distinct outside legal counsel companies with roughly 20 former DOJ employees, many of whom have intermittently served in the Antitrust Division.

The appointment of such individuals to its internal regulatory team is a reflection of the stringent oversight that Google is subject to from governments all around the world. According to two former government officials, it can be a hint that a corporation expects to deal with regulatory issues in the future even if it is unsure of the particular form those challenges will take.

"Companies undertake measures like these when they find themselves under significant scrutiny from regulatory agencies, whether under antitrust law or elsewhere," said Bill Kovacic, a former chair of the Federal Trade Commission who is currently an antitrust law professor at George Washington University.

The DOJ has now filed two antitrust complaints against Google related to its search and ad tech businesses, and other state attorneys general have also filed complaints. Global regulators, particularly those in Europe and Australia, have also put obstacles in the way of policy and enforcement.

Doug Melamed, a former acting assistant attorney general at the DOJ Antitrust Division and current scholar-in-residence at Stanford Law School believes that Google's hiring is not unusual for a business that is under such scrutiny.

When the Department filed its second antitrust complaint against the corporation early this year, the company had already been engaged in a difficult antitrust lawsuit that would probably require a staff of 10 to 15 attorneys by itself, according to Melamed.

"They are unable to handle a case of that magnitude if it is left unattended," Melamed claimed. "They must now consider whether outside attorneys are available who have the necessary time and knowledge to handle this matter. Do I then have the internal resources to support and manage it? ”

New laws that target Google's and other digital companies' businesses pose an additional threat. In the foreseeable future, it looks that the industry's extensive lobbying effort has been successful in postponing the most upsetting measures. Yet, the threat of fresh interest in that legislation still looms over the sector, and Kovacic said a corporation like Google "can take nothing for granted now." He added that this is probably why the company is beefing up its regulatory teams.

There is also the danger of new legislation that targets the operations of Google and other internet enterprises. It appears that the industry's enormous lobbying campaign has been effective in delaying the most distressing measures for the foreseeable future. Kovacic said a business like Google "can take nothing for granted now" but that the potential of renewed interest in that law still hangs over the industry and that is likely why the company is expanding its regulatory teams.

Revolving door hiring

At least five former DOJ employees are now part of Alphabet's legal team, including Google's director of competition Kevin Yingling, who has been with the firm for more than a decade and served as a trial lawyer there from 2000 to 2005, according to his LinkedIn profile.

As per LinkedIn, the corporation hired Kate Smith in February 2021 to serve as counsel for the regulatory response, investigations, and strategy section at Alphabet. Between September 2015 through January 2021, Smith served as a trial lawyer in the DOJ's Civil Frauds section.

Mike Kass, a former trial lawyer in the DOJ's Civil Fraud department, was hired by Alphabet in May 2022 to serve as its regulatory and litigation counsel for products, according to LinkedIn.

A month later, the company added Seema Mittal Roper to its regulatory response team as a lawyer. According to LinkedIn, Mittal Roper served as an assistant US attorney with the DOJ in Maryland from 2013 until 2018.

Most recently, the business added Jack Mellyn to its regulatory team as a strategic counsel. At the DOJ's competition policy and advocacy unit, Mellyn had previously served as an attorney advisor, acting assistant chief, and then assistant chief.

The personnel working on the individual cases before the DOJ are unclear, and Kass seems to have a function that is more general than antitrust-focused. Given their dates and previous job details as well as federal ethics laws that prohibit certain conflicts, it is likely that this personnel never worked on the Google-related issues they are currently handling while they were employed by the government.

But, according to experts, this type of hiring, which is prevalent among companies under regulatory inspection, can still be advantageous to a corporation because of the special perspective, connection, or authority that an ex-government attorney might wield when it comes to their former coworkers.

“There are many lawyers out there. Yet only former employees of a position can truly grasp how that position operates,” according to Jeff Hauser, executive director of the Revolving Door Project, which keeps tabs on the connections between executive branch officials and commercial entities. “That refers to the office's strengths and shortcomings as well as the personality types there. So, they are able to provide their client with far more specific intelligence and better-informed counsel.”

Hauser speculated that since the enforcers may not be able to handle it, lawyers may encourage a client or employer to overwhelm the agency with information rather than comply with a specific document request. Or, since they are aware of the government employee taking the deposition, they might offer suggestions on how to approach it.

"A lawyer with government expertise gives a general view about how the agency is treating these kinds of difficulties, rather than information about the unique issues of the companies involved," Melamed said.

Enforcement authorities frequently depend on the target of an inquiry to comply with their requirements. In contrast to a more distant attorney, Hauser suggested that the agencies could be more willing to believe the testimony of their former colleagues.

A current occurrence demonstrates what can arise when that confidence is betrayed. Last month, the DOJ charged Google with deleting chat conversations that it ought to have saved while the case was on litigation hold. The DOJ leveled the charge in a court document after Epic Games brought up the issue in its own antitrust case against Google.

When the DOJ filed its complaint, a Google spokeswoman issued a statement in which they "strongly reject the DOJ's assertions."

Based on reports, declarations, and legal filings, Google also retains outside counsel firms for its antitrust disputes, including Axinn, Freshfields, Ropes & Gray, and Wilson Sonsini. Around 20 former DOJ workers work for such companies collectively, many of them in the antitrust field. Even though not all of these lawyers work on Google cases, the firms frequently highlight the value of former government employees in providing clients with a useful viewpoint.

For instance, Freshfields claims on its website that it has a "strong bench of former FTC and DOJ trial attorneys, which offers us unique insight into how the enforcement agencies handle litigation in particular and enforcement in general."

According to Kovacic, when hiring outside organizations, businesses search for agency experience.

"They would place a lot of weight on how many former government officials are in those firms," Kovacic said. "They would decide who to retain, what law company to retain, or what economic consultancy to retain.

In a 2021 article in The New York Times, Freshfields attorneys Julie Elmer and Eric Mahr have spearheaded Google's defense against a monopolization claim about advertising technologies made by a coalition of states led by Texas. And this year, according to Bloomberg Law, Mahr will also be in charge of the defense in the DOJ's ad tech lawsuit.

Mahr served as the DOJ Antitrust Division's director of litigation from 2015 to 2017, according to the Freshfields website, and Elmer worked as a trial lawyer there from 2015 to 2020, per her LinkedIn profile.

Revolving door employment occurs in both the public and private sectors, with government employees frequently working for former employers or clients who become important to their line of work. For instance, Jonathan Kanter, the DOJ's antitrust chief, has experience working for clients who have complained about Google's alleged anti-competitive activities, such as Microsoft and Yelp.

Kanter was ultimately permitted to work on cases and investigations involving Google, despite the company's insistence that his prior work should raise questions about his impartiality in these situations.

Wilson Sonsini and the DOJ declined to comment. The three other companies weren't able to comment on this report right away.

Limits for former government employees

Federal ethics laws and bar regulations place restrictions on the projects that former government officials can work on.

For instance, according to the DOJ's website, former workers are not permitted to represent someone before the government if they "personally and materially" worked on the matter during their time in the agency. A former employee is also prohibited from representing anyone before the government for two years after leaving the Department if they are aware that the case "was pending under his official responsibility for the last year of government service and in which the United States is a party or has a substantial interest."

Former senior employees are also prohibited from appearing on behalf of a client before the agency "with the aim to influence" the DOJ on an issue that is pending or in which the agency has an interest for a year after leaving the organization.

According to Virginia Canter, the chief ethics counsel at Citizens for Responsibility and Ethics in Washington (CREW), who has previously provided government officials with ethics advice at organizations like the Securities and Exchange Commission and the Treasury Department, personal and substantial work on a matter within the government does not depend on the amount of time devoted to it, but rather the role a person played in potentially influencing the outcome or direction.

But even if a former government official is unable to work on a particular issue that they had access to while they were employed there, their perspective still might be valuable to companies.

"Although you can read about it, when you're actually involved in handling these instances, you know that there are certain variables that will either work as mitigating or... things will more likely persuade you to file a lawsuit," Canter added. “You only have general knowledge and experience,” she said.

Companies may believe that previous government officials will be more well-liked by the current administration if they hire them.

Canter presumed, "Maybe there's simply this general notion that they're attempting to surround themselves with what their former colleagues will regard as the good men.

Canter pointed out that some would contend that in some circumstances, the experience might be advantageous to the government. Given what could be at stake if authorities don't comply, a former government employee may have a stronger awareness of the significance of compliance or delivering specific information to them, for example.

Hauser argued that Kanter, who has made a point of bringing more aggressive prosecutions in the tech sector in general, and other DOJ leadership members are unlikely to be significantly persuaded to view ongoing cases in Google's favor. Yet, he asserted, the impact of former DOJ employees working for Google may be more significant in a developing issue where there is a chance to make a first impression on senior leadership.

Hauser noted that while the magnitude of this type of influence could be negligible at the level of a particular case, it might mount up for a corporation that is subject to such intense regulatory scrutiny.

Hauser added, "You're talking about consequences for Google's net worth that may be in the hundreds of billions of dollars. Relatively slight changes in the investigation's scope and duration can be highly significant, even if they have little bearing on the general issue of whether the Justice Department will file any cases against Google." 

Valentyna Semerenko
Eric Ng
John Liu
Editorial Board
Bryan Curtis
Adan Harris
Managing Editor
Cathy Hills
Associate Editor

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