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Op-Ed | The American Prospect | February 13, 2023

The Difference Between Expertise and Marketing

Anti-MonopolyBigLawDepartment of Justice
The Difference Between Expertise and Marketing

This article originally ran in The American Prospect.

Between a highly popular proposal to ban noncompetes, a bombshell new lawsuit against Google, and an imminent rewrite to the currently permissible merger guidelines, Lina Khan and Jonathan Kanter are making good on President Biden’s renewed promises to protect Americans from corporate abuses. In Biden’s words at the State of the Union address, “capitalism without competition is not capitalism. It’s extortion. It’s exploitation.” The Federal Trade Commission and the Justice Department’s Antitrust Division are the first-line defenders against such exploitation, and through their steady work have shown Americans what the government can do for them.

This tectonic shift in the government’s reaction to corporate power has drawn the kind of response media types can’t resist: “friendly fire” from former regulators who served in prior Democratic administrations. But the truth is that just because someone has past ties to the Democratic Party, their primary interest is not necessarily to assist Democrats politically.

One prime example: Dave Gelfand, the assistant attorney general for litigation in the Antitrust Division for much of Obama’s second term. Gelfand recently was given the opportunity to pen an op-ed in the legal trade publication Law360, and used the occasion to attack Kanter and his principal deputy assistant attorney general, Doha Mekki. Gelfand argues that under their direction, the Antitrust Division is “pushing aside decades of bipartisan antitrust enforcement,” which “is leading to bad policies and enforcement decisions.” He takes particular umbrage with the idea that “regulators have been asleep at the wheel for 40 years.”

The premise of the piece is that, as someone who is both a former Democratic official and a current corporate antitrust attorney, Gelfand is a neutral expert. But nothing could be further from the case. Gelfand is a partner at the major BigLaw firm Cleary Gottlieb Steen & Hamilton, where his responsibilities are to his corporate clients and the clients of other partners—not to the Democratic Party, the Department of Justice, or the public interest.

Back before Biden appointed Khan and Kanter, the Revolving Door Project worked to ensure the incoming administration repudiated the last few decades of Democratic Party weakness on anti-monopoly. As part of that effort, we released our research files on 13 former Dem regulators potentially up for Biden administration jobs with ties to monopolists. On our list was Gelfand, whom we highlighted for his work advising T-Mobile in the T-Mobile/Sprint merger. While the courts failed to block that merger, Gelfand not only didn’t get a Biden administration job; he now knows that he’s unlikely to ever get a gig in a Democratic administration again.

In criticizing Kanter, Gelfand probably knows that he might be viewed as a sore loser who wanted the job that the younger, more populist Kanter received. But Gelfand doesn’t address that possible bias explicitly. However, the piece does attempt, feebly, to address concerns about conflicts of interest.

Gelfand writes on his perspective from working on a 2008 merger between Miller and Coors (in which Gelfand represented Coors in front of the Justice Department) as well as representing Google in its acquisition of DoubleClick. The conclusion includes the disclosure: “Gelfand’s representation of Google and Coors in the matters discussed has concluded.” That is of course true because those matters closed many years ago. What Gelfand hopes readers do not ask, however, is whether Gelfand represents those firms in any other matters, or whether his law firm has either of those firms as clients. Other similar questions, such as whether Cleary Gottlieb represents any trade associations in which Google or Coors are members, are also unaddressed.

(We’ll put aside for the moment the question of whether Gelfand’s claim of no longer representing “Google” in these matters is technically true because of the firm’s bizarre formal rebranding as “Alphabet.” Probably even a BigLaw partner wouldn’t be so cute and technical, but you never know.)

This sort of half-nod at transparency is, frankly, much worse than failing to address the issue at all. Because we all know that there is no world in which a Cleary Gottlieb that has, hypothetically, lost Google to competitor BigLaw firms wouldn’t be desperate to win them and their billable hours back as a client. In fact, it’s good marketing for law firms to let it be known that they have partners willing to knife purported “fellow Democrats” on behalf of corporate interests.

And let’s be clear: Gelfand’s work greasing the wheels for the DoubleClick merger bolsters his reputation as an extremely successful lawyer for monopolists. He implies that the DOJ is wrong to take retroactive action on the merger, but we would all be better served if Gelfand dropped the act of pretending to promote the public interest, and fessed up to using the case to prove to other monopolists that he can also get their anti-competitive merger through the antitrust enforcers. Getting Law360 to publish a piece where Gelfand takes credit for steering one of the most consequential and harmful mergers of the 21st century through the merger review process is terrific marketing for Cleary!

Unsurprisingly, Gelfand also criticized Kanter for not working with would-be monopolists on divestiture agreements, a hallmark policy from the Obama era of antitrust regulation that has proven to often fail. Of course, this is the preferred policy of the corporations Gelfand represents, as divestitures allow otherwise illegal mergers to move forward. As with other departures from past policies, abandoning divestiture agreements is not “throwing out 40 years of learning,” as Gelfand complains. It’s learning from 40 years of mistakes, to the benefit of the American public.

This article is fundamentally not the work of an independent-minded expert offering their views of the public good. Rather, depending on Cleary’s current client roster, it should be viewed as either a work of business development or a pro-client act of hackery against public servants. The public discourse would be better off without these types of pieces, even if we’d lose the chance to mock them.

Anti-MonopolyBigLawDepartment of Justice

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