The DOJ Antitrust Division isn’t afraid to go to court

When the Department of Justice released its more than 70-page lawsuit against Apple, its narrative 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 recognize how easy it was for customers to switch to their rivals’ products — unless they did something to stop it. This kind of writing, sometimes called a speaking complaint, is a far cry from the rote retelling you often find in lawsuits.

That’s not a surprise once 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, because it’s the way that we communicate as human beings,” Doshi says, speaking to The Verge in April. (She spoke generally about the litigation program but declined to comment on any pending litigation, including against Apple.) The first lawyer in her family, Doshi often considers how she’d describe a case to her loved ones. “I have to really 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 moment in terms of expressing to courts and to the American people what’s at stake with consolidation and concentration of power,” she says.

To Doshi, what’s at stake is the ability of the American people to have sufficient choices available to them — whether that’s in choosing an airline seat or a publishing house to sell a book. When Doshi talks about antitrust, she talks about economic liberties and the American Dream. “Competition reflects our democratic values,” she says. “That’s why people have to be at the center of our cases.”

That’s the sort of lens that Doshi and her team are bringing to a range 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 perhaps even more importantly, it’s preparing the division to take on more courtroom challenges in the years to come.

That’s important when 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 exactly zero tech monopoly cases. Now, two 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 recent years, advocating for more vigorous enforcement of the laws, particularly in digital markets, which don’t always look like traditional antimonopoly cases because 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.)

Time is of the essence when it comes to building up a deep bench of courtroom expertise. Especially in the tech sector, where businesses change rapidly with new advancements, the pace of antitrust litigation can easily fall far behind. That can make it even more difficult to determine 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 several tech companies one after the other in court, and the litigation program is helping to ensure 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 particular moment to enforce our antitrust laws. They are moved by a strength of character and a sense of purpose that candidly elevates their advocacy in ways that are truly remarkable.”

DOJ Antitrust Division chief Jonathan Kanter began building up the program in 2022 and put Doshi at the helm, calling her in a statement “one of the nation’s elite trial lawyers. She is a visionary leader, generous mentor, and brilliant 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 civil and criminal programs within the division also 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 also required having the staffing and expertise to make more arguments in front of judges and juries, rather than in negotiations over consent decrees. He “wanted to have the ability to litigate a lot of cases at the same time,” recalled Richard Powers, who served as acting assistant attorney 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 difficult to gain trial experience at the Antitrust Division.

When people complain about the government moving slowly, it’s sometimes because of 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 because of how long it takes to get to trial in the first place. “You can work at the Antitrust Division as a trial attorney for ten years and have all your cases settle, and you don’t really 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 entire 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 civil side, we just hadn’t tried that many cases. And so there just wasn’t necessarily the bench that you would need to do what [Kanter] wanted to do, people with true in-courtroom litigation experience.”

That was the seed of what would later become the litigation program — a team 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 three different tech companies at one time.

That expertise can be useful in negotiations. “While not everything is going to go to trial, you have to 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 several choices the division has made in recent cases, including the accessible style 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 term called monopsony — where there’s a lack of competition of buyers for a product — Doshi said the division was really arguing a “common sense notion” that having more employers able to compete for labor would help workers see the true value of their work recognized. “That’s the American Dream that’s wrapped up in the principles of labor monopsony that that case was about.”

Strong litigation expertise can also show through in the efficiency of staffing cases. “Historically there has been a perspective that more was better when 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 other attorneys to work on different matters.

Litigation expertise likely also 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 judge 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 too complicated for a jury … And I think anybody who ever says that has never been in front of a jury. Juries are smart. They get it. They understand the issues.” 

The litigation program represents a new approach spearheaded by Kanter when it comes to antitrust enforcement. In public remarks, he has said that bringing cases to trial — rather than settling — is important in order to have courts weigh in on important questions that can advance antitrust law. 

“Settlements do not move the law forward,” Kanter said in a speech before the New York State Bar Association in 2022. “We need new published opinions from courts that apply the law in modern markets in order to provide clarity to businesses. This requires litigation that sets out the boundaries of the law as applied to current markets, and we need 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 initial steps to ramp up litigation talent, which, at the time, included designating Doshi and experienced trial attorney Carol Sipperly as acting deputy assistant attorneys general overseeing litigation. “Our goal is simple: we must be prepared to try cases to a verdict when 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 other 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 often seek help outside its own unit “unless it was a mega case.” That meant drawing on the expertise of a handful of experienced litigators within the division. While he said those attorneys were strong, “you need more than three people who can be the lead trial attorney for all of your cases.” The problem is, when 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 big 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.”

While it’s early to see this in case filing trends, Lex Machina found in a recent report that civil enforcement cases filed by the DOJ or Federal Trade Commission where defendants contested the lawsuit rose from five to eight between 2022 and 2023. 

But Kanter himself and others who’ve worked in the division say this period of antitrust litigation is unlike any other in the recent 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 previous 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 specific case or a specific industry or a specific moment even,” she says. “But instead, building the litigation program is an investment in the idea 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 recent administrations. As much as the resources of the litigation program are being put to use 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 literally will resonate for ten-plus years.”