When the Department of Justice released its more than 70-page lawsuit against Apple, its communicative read more like a docu-drama than a stodgy legal document. It dropped the reader right into a 2010 exchange between an Apple executive and then-CEO Steve Jobs, who were just beginning to admit how easy it was for customers to control to their rivals’ products — unless they did something to halt it. This kind of writing, sometimes called a speaking complaint, is simply a far cry from the rote retelling you frequently find in lawsuits.
That’s not a surprise erstwhile you know that Hetal Doshi, lead of the nascent litigation program within the Antitrust Division, sees her job, in part, as that of a storyteller.
“Storytelling matters a lot in litigation, due to the fact that it’s the way that we communicate as human beings,” Doshi says, speaking to The Verge in April. (She spoke mostly about the litigation program but declined to comment on any pending litigation, including against Apple.) The first lawyer in her family, Doshi frequently considers how she’d describe a case to her loved ones. “I gotta truly focus on: Who are the actors? What’s the issue and why does it matter?” For her, it’s not just about a dry regurgitation of the facts. “It meets this minute in terms of expressing to courts and to the American people what’s at stake with consolidation and concentration of power,” she says.
“Competition reflects our democratic values”
To Doshi, what’s at stake is the ability of the American people to have adequate choices available to them — whether that’s in choosing an airline seat or a publishing home to sale a book. erstwhile Doshi talks about antitrust, she talks about economical liberties and the American Dream. “Competition reflects our democratic values,” she says. “That’s why people should be at the center of our cases.”
That’s the kind of lens that Doshi and her squad are bringing to a scope of cases at the Antitrust Division. Her unit just got its start under the current administration but is already helping increase the division’s capacity to bring complex litigation and a litigator’s eye to investigations. And possibly even more importantly, it’s preparing the division to take on more courtroom challenges in the years to come.
That’s crucial erstwhile you think about the scale of the litigation the division is tackling, even as its budget has failed to grow commensurate with its ambitious goals. In the tech sector alone, the division has major monopoly cases ongoing against Apple, Google (which faces two separate lawsuits), and just recently, Ticketmaster and its owner, Live Nation. In the 20 years before the first Google case was filed, the division had precisely zero tech monopoly cases. Now, 2 of its opponents — Apple and Google — are each worth more than $2 trillion, giving them ample resources to hire a boatload of lawyers.
The creation of the litigation program reflects the larger goals of the Antitrust Division’s leadership: to bring more cases to trial to advance the application of century-old antitrust laws for modern times. It follows a movement that has gained steam in fresh years, advocating for more vigorous enforcement of the laws, peculiarly in digital markets, which don’t always look like conventional antimonopoly cases due to the fact that they offer products for free or benefit from network effects. That movement has seen many of its hopes fulfilled under the Biden administration, which empowered reform-minded enforcers. But that could change if Joe Biden isn’t reelected as president in November, though antitrust politics don’t always fall along partisan lines in the modern era. (The Antitrust Division under the Biden administration, for example, took Google to trial in a case that was investigated and filed during the Trump administration.)
In the tech sector, where businesses change rapidly with fresh advancements, the pace of antitrust litigation can easy fall far behind
Time is of the essence erstwhile it comes to building up a deep bench of courtroom expertise. Especially in the tech sector, where businesses change rapidly with fresh advancements, the pace of antitrust litigation can easy fall far behind. That can make it even more hard to find an effective remedy to correct a years-old harm if a court finds the company liable for it in the first place. After years of investigations, the division is now poised to face respective tech companies 1 after the another in court, and the litigation program is helping to guarantee the government has the tools to do that now and in the future.
“Not all resources are necessarily the same,” says Doshi. “Our secret weapon is the fact that we have public servants who choose to be here in this peculiar minute to enforce our antitrust laws. They are moved by a strength of character and a sense of intent that candidly elevates their advocacy in ways that are truly remarkable.”
Antitrust expertise with a prosecutor’s eye
DOJ Antitrust Division chief Jonathan Kanter began building up the program in 2022 and put Doshi at the helm, calling her in a message “one of the nation’s elite trial lawyers. She is simply a visionary leader, generous mentor, and superb legal strategist.” The program operates like a center of litigation resources that staff throughout the division can work with in crafting their cases, even beginning at the investigation stage. While the civilian and criminal programs within the division besides have their own litigation staff, the program offers an extra set of dedicated resources from a variety of backgrounds with deep in-courtroom experience. Staff in the litigation program tackle things ranging from prepping to advocate for a case in court to training and mentoring.
When Kanter was confirmed to lead the Antitrust Division in 2021, he wanted to reinvigorate antitrust enforcement, which included litigating more cases the division might not have previously brought to trial. But that besides required having the staffing and expertise to make more arguments in front of judges and juries, alternatively than in negotiations over consent decrees. He “wanted to have the ability to litigate quite a few cases at the same time,” recalled Richard Powers, who served as acting assistant lawyer general at the Antitrust Division prior to Kanter’s confirmation. The problem was, they didn’t have the volume of staff with a depth of courtroom experience to carry out that vision. That’s because, historically, it’s been hard to gain trial experience at the Antitrust Division.
When people complain about the government moving slowly, it’s sometimes due to the kinds of structural roadblocks that Kanter encountered in this area. Due to the lengthy and complex nature of antitrust cases, it’s not uncommon for attorneys in the division to have limited trial experience due to how long it takes to get to trial in the first place. “You can work at the Antitrust Division as a trial lawyer for 10 years and have all your cases settle, and you don’t truly get the litigation experience that you’re looking for,” Powers says. Take the first Google antimonopoly complaint over Search: DOJ filed it in October 2020, and the trial didn’t start until September 2023. And that’s after the full process of investigating the company, including poring over millions of documents from Google.
So after Kanter joined the division in 2021, Powers recalled, “We had to figure out, what do we have in terms of capabilities? … Especially on the civilian side, we just hadn’t tried that many cases. And so there just wasn’t necessarily the bench that you would request to do what [Kanter] wanted to do, people with actual in-courtroom litigation experience.”
That was the seed of what would later become the litigation program — a squad of experienced litigators that could bring what Powers called a “prosecutor’s eye” to conduct cases like illegal monopolization — the kinds of charges that are now leveraged at 3 different tech companies at 1 time.
That expertise can be useful in negotiations. “While not everything is going to go to trial, you should be prepared to go to trial in order to have credibility with the company or the merging parties,” says Bill Baer, who led the Antitrust Division during the Obama administration.
Glimmers of that prosecutor’s lens might be found in respective choices the division has made in fresh cases, including the accessible kind of the Apple complaint, for example. Though Doshi says the division’s actions always start with the law itself, “we can’t forget that competition serves people.” She pointed to the DOJ’s successful case against Penguin Random House’s proposed acquisition of Simon & Schuster, where the government argued the deal would harm competition for publishing rights in the US. While on its surface, the case was about a jargon-y word called monopsony — where there’s a deficiency of competition of buyers for a product — Doshi said the division was truly arguing a “common sense notion” that having more employers able to compete for labour would aid workers see the actual value of their work recognized. “That’s the American Dream that’s wrapped up in the principles of labour monopsony that that case was about.”
Strong litigation expertise can besides show through in the efficiency of staffing cases. “Historically there has been a position that more was better erstwhile it came to staffing these trials,” Powers says. But more streamlined staffing can actually lead to clearer arguments, where it’s easier to “get to the heart of what the cases are about,” while freeing up another attorneys to work on different matters.
Litigation expertise likely besides comes into play with decisions to bring cases in front of a jury versus a judge. DOJ has pushed to have antitrust suits like the Google ad tech and Ticketmaster cases tried before a jury. (A justice recently denied DOJ’s request for a jury trial in the Google ad tech case.) Before Kanter’s tenure, Powers says, “you might have heard, ‘Oh, this is besides complicated for a jury … And I think anybody who always says that has never been in front of a jury. Juries are smart. They get it. They realize the issues.”
“Settlements do not decision the law forward”
The litigation program represents a fresh approach spearheaded by Kanter erstwhile it comes to antitrust enforcement. In public remarks, he has said that bringing cases to trial — alternatively than settling — is crucial in order to have courts weigh in on crucial questions that can advance antitrust law.
“Settlements do not decision the law forward,” Kanter said in a speech before the fresh York State Bar Association in 2022. “We request fresh published opinions from courts that apply the law in modern markets in order to supply clarity to businesses. This requires litigation that sets out the boundaries of the law as applied to current markets, and we request to be willing to take risks and ask the courts to reconsider the application of old precedents to those markets.”
During a separate antitrust enforcers gathering in 2022, Kanter discussed his first steps to ramp up litigation talent, which, at the time, included designating Doshi and experienced trial lawyer Carol Sipperly as acting deputy assistant attorneys general overseeing litigation. “Our goal is simple: we must be prepared to effort cases to a verdict erstwhile we think a violation has taken place,” Kanter said at the time. “And that means that our capacity for litigation must grow with the demands of modern antitrust enforcement. In another words, the division must have the scale to litigate multiples of our current docket.”
In the past, Powers recalled that the Antitrust Division wouldn’t frequently search aid outside its own unit “unless it was a mega case.” That meant drawing on the expertise of a fistful of experienced litigators within the division. While he said those attorneys were strong, “you request more than 3 people who can be the lead trial lawyer for all of your cases.” The problem is, erstwhile there aren’t many trials happening at the same time for a very long period, “it’s not as pressing an issue” to find more or train others up to be ready for large trials, Powers says.
The litigation program “has redefined what it means for enforcers to bring antitrust cases to trial,” Kanter said in a statement. “We have amassed the talent, resources, and infrastructure to bring — and win — many transformational antitrust cases at once.”
“We have amassed the talent, resources, and infrastructure to bring — and win — many transformational antitrust cases at once.”
While it’s early to see this in case filing trends, Lex Machina found in a fresh study that civilian enforcement cases filed by the DOJ or national Trade Commission where defendants contested the suit rose from 5 to 8 between 2022 and 2023.
But Kanter himself and others who’ve worked in the division say this period of antitrust litigation is unlike any another in the fresh past. In March 2023, Kanter said in a speech that the division had brought more cases under Section 2 of the Sherman Antitrust Act (the antimonopoly law) in the last year than in the erstwhile 25. And that seems to be having a deterrent effect. “We’re seeing more anticompetitive deals either fall apart or not come to us in the first place,” Kanter told The Verge.
Doshi says the litigation program “is about an investment in the future.” That means, “we’re not focusing on a circumstantial case or a circumstantial manufacture or a circumstantial minute even,” she says. “But instead, building the litigation program is an investment in the thought that building rich expertise will vindicate competition for decades to come.”
Baer says the volume of major litigation the division has going on at the same time now is much higher than it was in fresh administrations. As much as the resources of the litigation program are being put to usage now, their impact in the future could be even more important. “One of the things that will come out of this period, whenever it ends, is you have a generation of trial attorneys at the Antitrust Division who have serious trial experience,” Powers says. “And this is the kind of thing that virtually will resonate for ten-plus years.”
