United States v. Google LLC

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES, et al., )

)

Plaintiffs, )

)

Vv. ) 1:23-cv-108 (LMB/JFA)

)

GOOGLE, LLC, )

)

Defendant. )

MEMORANDUM OPINION

Before the Court is plaintiffs’ Motion for Partial Judgment on the Pleadings or to Strike

as to Google LLC’s Tenth and Thirteenth Affirmative Defenses, or in the Alternative for a

Protective Order (“Motion”) [Dkt. No. 317].! Google’s tenth and thirteenth defenses state:

Tenth Defense: Plaintiffs’ claims are barred, in whole or in part, as an improper selective

enforcement of antitrust laws.

Thirteenth Defense: Plaintiffs’ claims are barred, in whole or in part, because the

initiation and maintenance by the Department of Justice of this investigation and

litigation against Google violates the Due Process Clause of U.S. Const. amend. V and

federal ethics laws and regulations, see e.g., 5 C.F.R. § 2635.101(b)(8).?

[Dkt. No. 208] at 54-55. Both affirmative defenses’ are grounded in Google’s claim that

Assistant Attorney General of the Department of Justice’s (“DOJ”) Antitrust Division Jonathan

Kanter (“Kanter” or “AAG Kanter”) unfairly pursued litigation against Google on behalf of

Google’s competitors, several of whom he represented as clients while he was in private practice.

' Plaintiff states do not join in seeking a protective order, “since no discovery related to these

affirmative defenses has been sought from [p]laintiff states.” [Dkt. No. 318] at 2 n.1.

25 C.F.R. §2635.101(b)(8) states that “[e]mployees shall act impartially and not give preferential

treatment to any private organization or individual.”

3 The magistrate judge overseeing discovery issues has reserved ruling on whether to grant the

United States’ motion for a protective order to prevent deposition of plaintiff United States’

counsel as it relates to this issue. [Dkt. No. 377].

Google argues that plaintiffs, as well as former clients of AAG Kanter, “have tried to block

Google from learning more about their roles in orchestrating this lawsuit,” and that this

information is relevant to Google’s defenses and the motives and biases of witnesses the DOJ is

likely to call at trial. [Dkt. No. 368] at 2-3. As discussed in open court and further explained in

this Memorandum Opinion, these two defenses are not legally supported, are detracting from the

core issue in the litigation, and are creating unnecessary discovery issues, much of which involve

third parties. As further stated in open court and for the reasons that follow, plaintiffs’ Motion is

granted.

I. BACKGROUND

The parties do not dispute that, before his confirmation, AAG Kanter spent over 15 years

in private practice, which in part involved trying to encourage antitrust enforcement of Google’s

anticompetitive practices on behalf of his clients. [Dkt. No. 368] at 3. For example, in 2012,

Microsoft paid Kanter to lobby the Federal Trade Commission (“FTC”) to investigate Google’s

search business conduct. Id. at 4. Kanter was also a member of a legal team that filed antitrust

complaints against Google on behalf of its competitors, TradeComet and MyTriggers. Id. at 5.

And in July 2020, Kanter emailed the DOJ about a presentation that he and Susan Athey, then

Microsoft’s Chief Economist, had prepared to encourage the DOJ to take antitrust enforcement

actions against Google. Id. at 7.

On November 16, 2021, the United States Senate confirmed Kanter to be the Assistant

Attorney General of the DOJ’s Antitrust Division. [Dkt. No. 318] at 5. Three days later, Google

sent a letter and released public statements, calling on the Department to recuse AAG Kanter

from matters involving Google. Id. Google does not contest that the DOJ had started actively

investigating Google’s ad tech business in August 2019 during the Trump Administration, more

than two years before Kanter was confirmed as the Antitrust Division’s AAG, and it was also

litigating another monopolization case against Google involving Google’s search-related

markets, which remains pending in the District of Columbia. Id.

After Kanter’s 2021 appointment during the Biden administration, pursuant to 5 C.F.R.

§ 2635.502(b)(1)(iv), he initially recused himself from Google-related matters because he had,

while in private practice, represented third parties in connection with the investigations of

Google’s search and ad tech businesses. Id. Supervision of the matter was delegated to the

Antitrust Division’s Principal Deputy Assistant Attorney General who is authorized to make

enforcement decisions when AAG Kanter is recused. Id. at 5-6. After the one-year recusal

period elapsed, AAG Kanter became involved in the Google ad tech investigation, and on

January 24, 2023, the United States and eight state co-plaintiffs brought this action against

Google for violations of the antitrust laws. Id. at 6; [Dkt. No. 1]. AAG Kanter and several

senior officials of the Antitrust Division signed the Complaint. Id.

Google alleges that the United States only sued Google after AAG Kanter was able to

work on the case, even though it could have sued Google for its ad tech business practices in

December 2020, alongside Texas and nine other states, or in any of the 18 additional actions by

various plaintiffs that were filed in different courts and consolidated in August 2021. [Dkt. No.

368] at 12-13. As Google characterizes the litigation before this Court, it was only after AAG

Kanter was cleared and authorized to lead this action on behalf of the federal government that a

complaint was prepared that “asserted the same antitrust theories that AAG Kanter had been paid

to press for years on behalf of his private practice clients.” Id. at 12. Google further argues that,

although the DOJ purports to bring this Complaint on behalf of federal agencies, specifically

eight Federal Agency Advertisers (“FAAs”), discovery to date has demonstrated that those

FAA’s do not believe that they have been harmed by Google’s practices, which provides support

for Google’s theory that the DOJ’s clients are actually the companies AAG Kanter represented in

the past and not the FAAs. Id. at 16-18.

On April 17, 2023, the United States amended the Complaint to add nine additional state

co-plaintiffs, [Dkt. No. 120]; however, the Amended Complaint was not signed by AAG Kanter

because the day the Amended Complaint was filed, attorneys from Paul, Weiss, Rifkind,

Wharton & Garrison LLP (“Paul, Weiss”), AAG Kanter’s former law firm, appeared for the first

time on Google’s behalf. [Dkt. No. 318] at 6. As a result, AAG Kanter had to recuse himself to

abide by Executive Order 13989, which imposes heightened ethics obligations on political

appointees in the Executive Branch (the “Ethics Pledge”). Id. The Ethics Pledge requires AAG

Kanter to refrain from participating, for two years from the date of his appointment, in any

matter in which his former employer appears on behalf of a party, unless a waiver is obtained.

Id, at 6-7. AAG Kanter has not participated in this case since becoming aware that Google

retained Paul, Weiss in this action, and he will continue to be recused from this matter until

November 2023. Id. at 7.

II. DISCUSSION

Plaintiffs argue that in asserting its tenth and thirteenth affirmative defenses, Google

“seeks to divert attention away from its alleged illegal conduct” and is using these defenses “as a

basis to issue unusual, invasive, and irrelevant discovery requests on the United States and

numerous third parties.” [Dkt. No. 318] at 1-2. As such, plaintiffs seek partial judgment on the

pleadings or, in the alternative, to strike both affirmative defenses. Id. If that relief is not

granted, plaintiff United States seeks a protective order restricting Google from engaging in

discovery related to these defenses. Id.

Plaintiffs claim that Google’s tenth, selective enforcement defense is insufficient as a

matter of law because Google has not identified any similarly situated company engaged in

similar behavior to Google against whom plaintiffs have declined to enforce the nation’s antitrust

laws, and its thirteenth, due process defense similarly fails because it is not a defense to antitrust

liability as it is irrelevant to any issues to be decided by the jury in this action. Id. at. 17. The

United States alternatively requests that the Court issue a protective order foreclosing discovery

on these defenses because further discovery would “divert public resources away from litigation

on the merits, and toward a discovery campaign that will likely require continuing intervention

of the Court to resolve the myriad privilege and other discovery disputes that are implicated by

these requests.” Id. at 2-4.

Google opposes plaintiffs’ Motion on the grounds that their challenge to Google’s defenses

are procedurally improper because a motion for partial judgment under Rule 12(c) is “the wrong

procedural vehicle” for plaintiffs’ challenge, and their motion to strike under Rule 12(f) is

untimely. [Dkt. No. 368] at 21. Google further argues that neither affirmative defense can be

resolved on the basis of the pleadings because additional discovery is necessary to determine the

viability of those defenses, and discovery to date has already uncovered evidence that AAG

Kanter’s bias has “infected this entire proceeding.” Id. at 25.

A. Standard of Review

1. Judgment on the Pleadings (Fed. R. Civ. P. 12(c))

Under Fed. R. Civ. P. 12(c), after the pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings. A party is entitled to judgment on the

pleadings only when the pleadings, construing the facts in the light most favorable to the non-

moving party, (1) fail to state any cognizable claim for relief; and (2) the matter can be decided

as a matter of law. See Zeran v. Am. Online, Inc., 129 F.3d 327, 329 (4th Cir. 1997).

Like a Rule 12(b)(6) motion, a Rule 12(c) motion “generally cannot reach the merits of

an affirmative defense.” Goodman v. Prazair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc);

Sherrod v. Harkleroad, 674 F. App’x 265, 266 (4th Cir. 2017) (explaining that courts use the

same standard applied to rule Rule 12(b)(6) motions to Rule 12(c) motions). In the “relatively

rare circumstances” where facts sufficient to rule on an affirmative defense are alleged, the

defense may be reached under Rule 12(c); however, this principle only applies if “all facts

necessary to the affirmative defense ‘clearly appear[] on the face of the complaint.’”” Goodman,

494 F.3d at 464 (citing Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th

Cir. 1993)).

2. Motion to Strike (Fed. R. Civ. P. 12(f))

Under Fed. R. Civ. P. 12(f), a court may “strike from a pleading an insufficient defense

or any redundant, immaterial, impertinent, or scandalous matter.” Such a motion must be filed

“within 21 days of being served with [a] pleading,” or a court may act “on its own.” Fed. R. Civ.

P. 12(f)(1)-(2). The Fourth Circuit has viewed Rule 12(f) motions with disfavor “because

striking a portion of a pleading is a drastic remedy and because it is often sought by the movant

simply as a dilatory tactic.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir.

2001).

Rule 12(f) “imposes a sizable burden on the movant, and courts typically strike defenses

only when they have no possible relation to the controversy.” Lopez v. Asmar's Mediterranean

Food, Inc., 2011 WL 98573, *1 (E.D. Va. Jan. 10, 2011) (internal quotation marks

omitted). “[W]henever granted, the defendant should generally be given leave to amend.”

Flame S.A. v. Indus. Carriers, Inc., 2014 WL 2871432, *2 (E.D. Va. June 24, 2014) (citing

Palmer v. Oakland Farms, Inc. 2010 WL 2605179, *2 (W.D.Va. June 24, 2010)); however,

courts are not required to grant leave to amend an affirmative defense where the relevant

defenses fail as a matter of law. See Malibu Media, LLC v. Popp, 2015 WL 10937405, *3 (E.D.

Va. Apr. 13, 2015) (striking an affirmative defense and denying leave to amend because it had

not been recognized as an affirmative defense); Villa v. Ally Fin. Inc., 2014 WL 800450, *4

(M.D.N.C. Feb. 28, 2014) (declining to grant leave to amend laches defense as it would not

constitute valid defense in the case).

3. Motion for a Protective Order (Fed. R. Civ. P. 26(c))*

A court may, for good cause, “issue an order to protect a party . . . from annoyance, ...

oppression, or undue burden or expense,” by “forbidding inquiry into certain matters, or limiting

the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1), (c)(1)(D).

Good cause to issue a protective order generally exists when the party seeking the protective

order “demonstrate[es] that specific prejudice or harm will result if no protective order is

granted.” In re Zetia (Ezetimibe) Antitrust Litig., 2022 WL 18109999, *2 (E.D. Va. Feb. 7,

2022). Such orders are “sparingly used and cautiously granted.” Id. If this showing is made, the

party seeking the materials then must establish that the information is sufficiently necessary and

relevant to his case to outweigh the harm of disclosure. In re Wilson, 149 F.3d 249, 252 (4th Cir.

1998).

4 As already explained in open court, and as both parties have recognized, if the Court grants

plaintiffs’ request for partial judgment on the pleadings or to strike Google’s tenth and thirteenth

affirmative defenses, the Court’s decision would moot most of the issues raised in the DOJ’s

Motion for a Protective Order. See [Dkt. No. 318] at 22-23.

B. Analysis

1, Timing

As an initial matter, Google argues that plaintiffs’ Motion for Judgment on the Pleadings

and Motion to Strike are procedurally improper. Rule 12(c) allows a party to file a motion for

judgment on the pleadings if brought “early enough not to delay trial.” Fed. R. Civ. P. 12(c).

Google cites to Biniaris v. Hansel Consulting, PLLC, which denied a Rule 12(c) motion finding

that because the plaintiff filed the motion almost four months after defendant filed its Answer,

the parties already had a Rule 16(b) conference, and discovery was well underway, the motion

was likely not made “early enough not to delay trial.” 382 F. Supp. 3d 467, 471 (E.D. Va. 2019).

Although plaintiffs in this action did not file their Motion until August 18, 2023, over

three months after Google filed its Answer, and the parties already had a Rule 16(b) scheduling

conference, unlike in Biniaris, there is no “potential delay that would arise if” plaintiffs’ Motion

is granted because, if anything, the Court’s ruling would eliminate unnecessary discovery,

thereby actually expediting the discovery process. Id.

As to plaintiffs’ Motion to Strike, under Rule 12(f)(2) of the Federal Rules of Civil

Procedure, Google argues that the Motion is untimely because it was not brought “within 21 days

after being served with the pleading.” Fed. R. Civ. P. 12(f)(2). But as Google admits, this time

limit for filing is not dispositive because Rule 12(f)(1) allows a court to strike material from a

pleading “on its own” without regard to timeliness if it is satisfied that an affirmative defense is

“insufficient” or “immaterial.” Lopez, 2011 WL 98573, at *1; Fed. R. Civ. P. 12(8)(1).

2. Tenth Affirmative Defense

Google argues that the success of its selective enforcement defense depends on the

resolution of factual issues that should not and cannot be resolved before the completion of

discovery, which has not yet been completed. [Dkt. No. 368] at 26. Selective enforcement is a

defense “normally applied in criminal cases,” not in civil enforcement actions. See United States

v. Snepp, 595 F.2d 926, 933 (4th Cir. 1979); rev’d on other grounds, Snepp v. United States, 444

U.S. 507 (1980), Although this Court has recognized selective enforcement as an actionable

claim in certain civil contexts, such cases have not involved an affirmative defense to liability in

a civil antitrust or other enforcement action. See e.g., Bruce & Tanya Assocs., Inc v. Bd. Of

Supervisors of Fairfax Cnty., Va. 355 F. Supp. 3d 386, 413-15 (E.D. Va. 2018), aff'd 854 F.

App’x 521 (4th Cir. May 10, 2021) (affirming dismissal of selective enforcement claim in

challenge to statutory scheme governing highway signs).

Courts that have grappled with this precise issue have similarly questioned whether

selective enforcement “should be extended to civil actions.” Snepp, 595 F.2d at 933; Ciechon v.

City of Chicago, 686 F.2d 511, 523 n.16 (7th Cir. 1982) (declining to opine on whether selective

prosecution is a defense in civil cases); Stanley, 2012 WL 13012479, at *3 (“Defendant has

made no argument for why [selective prosecution] should apply in . . . a civil enforcement

action—nor is it clear to us that it does.”); Att’y Gen. of the United States v. Irish People, Inc.,

684 F.2d 928, 932 n.8 (D.C. Cir. 1982) (“We need not reach the question of to what extent the

selective prosecution defense may be inappropriate in a civil suit context.”). Although the

Fourth Circuit has never directly addressed this issue, in Snepp, it highlighted that “we have

found[] no authority suggesting that the defense of selective enforcement . . . should be extended

to civil actions.” 595 F.2d at 933. The only published opinions in this district that have analyzed

a defendant’s affirmative defense of selective enforcement in the civil context have rejected the

defense. Specifically, in United States v. Smithfield Foods, Judge Rebecca Beach Smith

precluded defendants from raising a selective enforcement defense at trial, finding that, as an

initial matter, defendants never properly raised this defense and that defendants could not

possibly satisfy the requirements for a defense of selective prosecution because they failed to

show “governmental vindictiveness.” 969 F.Supp. 975, 985 (E.D. Va. 1997). In the more recent

United States v. Snowden, Judge Liam O’Grady disallowed a defendant to engage in any

discovery related to his selective enforcement defense that alleged the lawsuit against him for

breach of security agreements was based upon animus towards him. 611 F. Supp. 3d 206, 211

(E.D. Va. 2019). The Court did not engage with the merits of the selective enforcement defense

here because it concluded that the defendant “waived th{at] defense[].” Id.

Although some courts, such as the Ninth Circuit and some other district courts, have

recognized selective enforcement as a plausible defense in civil enforcement actions, see, e.g.,

Church of Scientology of Cal. v. C.LR., 823 F.2d 1310, 1320 (9th Cir. 1987) (analyzing the

actions of the IRS under selective prosecution standards but noting that the standard “is arguably

too stringent for review of a mere revocation of tax-exempt status”), the Court finds that

Google’s affirmative defense still fails as a matter of law because the federal government has

“broad discretion” to enforce the laws of this Nation. United States v. Armstrong, 517 U.S. 456,

464 (1996). A “presumption of regularity supports [the United States’] prosecutorial decisions

and ‘in the absence of clear evidence to the contrary, courts presume that they have properly

discharged their official duties.”” Id. As the Court has explained, the United States’ discretion is

subject to constitutional constraints, which “ensures that any decision to prosecute a particular

person is not based on unjustifiable standards, such as race, religion, or other arbitrary

classifications.” Smithfield, 969 F.Supp. at 985.

The requirements for a defense of selective enforcement “are similar to the standards for

a violation of equal protection.” Id. A prima facie case of selective enforcement requires that a

claimant “demonstrate that federal prosecutorial policy ‘had a discriminatory effect and that it

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was motivated by a discriminatory purpose.’” Id. (quoting Armstrong, 116 S. Ct. at 465). This

language has been interpreted to mean that “defendants bear a heavy burden of establishing that

(1) defendants have been singled out while other similarly situated violators were left untouched,

and (2) that the government selected defendants for prosecution invidiously or in bad faith, i.e.,

based upon such impermissible considerations as race, religion, or the desire to prevent the

exercise of their constitutional rights.” Id. (citing United States v. Production Plated Plastics,

Inc., 742 F.Supp. 956, 962 (W.D. Mich. 1990)). Further, “[D]efendants are similarly situated

when their circumstances present no distinguishable legitimate prosecutorial factors that might

justify making different prosecutorial decisions with respect to them.” United States v. Olvis, 97

F.3d 739, 744 (4th Cir. 1996).

Plaintiffs argue that their request for judgment on the pleadings or to strike Google’s

tenth defense should be granted because Google is not part of a protected class and even if a

selective enforcement defense were available, Google has not and cannot plead that this civil

antitrust action had both “a discriminatory effect and that it was motivated by a discriminatory

purpose.” [Dkt. No. 318] at 11-12. Moreover, it is “difficult to even conceptualize how a

selective enforcement claim applies in the antitrust context.” United States v. AT&T, 290 F.

Supp. 3d 1, 4 (D.D.C. 2018). In AT&T, the court analyzed whether defendants should be

allowed to conduct discovery into a selective enforcement defense in an antitrust enforcement

action challenging a merger between AT&T/Direct TV and Time Warner. Id. The district court

rejected the defendant’s efforts to obtain discovery, and because the defense fell “far short of

establishing that this enforcement action was selective,” it granted plaintiffs’ motion to strike the

selective enforcement defense. Id, at 5; see also Smithfield, 969 F.Supp. at 985 (finding that

defendant had not put forth any evidence suggesting that the EPA has failed to pursue

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enforcement actions against similarly situated violators, “nor have they offered any evidence

suggesting that the EPA has failed to pursue enforcement actions against similarly situated

violators for improper purposes”).

In its Opposition, Google alleges that Microsoft is a similarly situated violator and that

the DOJ has treated Microsoft differently by not bringing antitrust claims against it. [Dkt. No.

368] at 8-9. Google’s assertion that the DOJ has treated Microsoft differently is insufficient to

allege a satisfactory selective enforcement defense, and its citation to United States v. McGraw-

Hill Companies, Inc. is of little value. 2014 WL 1647385 (C.D. Cal. Apr. 15, 2014). In that

case, the district court allowed discovery relating to a selective enforcement defense because,

although the “[g]overnment may indeed have many good reasons for its decisions,” the

defendant was nonetheless “entitled to test the Government’s case through discovery.” Id. at

*12. The district court was careful to emphasize that defendant was only entitled to such

discovery because it had presented evidence “tending to show the existence [of] different

treatment” of other major credit reporting agencies, but it did not detail the relevant evidence

presented. Id.

Here, Google’s bare allegation that one prosecutor had distaste for Google’s

anticompetitive practices, a prosecutor who did not even sign the Amended Complaint and is

currently recused from the civil action, fails to satisfy the evidence required to survive plaintiffs’

Motion. Considering the wide discretion afforded to the United States in exercising its

enforcement powers, coupled with the fact that the Amended Complaint—brought by 17 states in

addition to the United States—provides details of Google’s alleged anticompetitive conduct at

issue in this action, Google cannot cure this defect by pointing to what it believes is a similarly

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situated potential defendant who it speculates has evaded antitrust enforcement. [Dkt. No. 318]

at |.

Google has similarly not plausibly pleaded that this civil enforcement action was brought

with a discriminatory purpose. Discriminatory purpose requires proof that the decision to file an

enforcement action was “invidious or in bad faith.” United States v. Venable, 666 F.3d 893, 903

(4th Cir. 2012). Google’s allegation that AAG Kanter’s past representation of clients who might

have interests adverse to Google alone cannot be indicative of bias because Google is not entitled

to a prosecutor devoid of any experience or perspective about Google. In SEC v. W. Int’! Sec.,

Inc., the district court granted the SEC’s motion to strike a selective enforcement affirmative

defense without leave to amend because defendant, like Google, was “not a member of a

protected class” and was not “alleging retaliation for exercising its constitutional rights.” 2023

WL 2480732, *8 (C.D. Cal. March 13, 2023). As such, the defendant’s only path to success on

this defense was to show that there was “no rational basis for the SEC’s decision to single it out.”

Id. As the district court highlighted, “A claim that a government agency abused its discretion in

selectively enforcing a regulation against a class of one is generally available only in truly

horrendous situations.” Id. (quoting Baker v. Coxe, 230 F.3d 470, 474-75 (1st Cir. 2000)).

Google is not part of an identifiable group against whom the nation’s antitrust laws are

being selectively enforced in some instances but not others, and it similarly cannot show that

there is no rational basis for the DOJ to pursue this enforcement action given the number of other

plaintiffs from all political persuasions who joined the DOJ’s Complaint and the number of other

lawsuits brought by other public as well as private entities against Google that “have survived

numerous motions to dismiss from multiple disinterested Article III judges.” [Dkt. No. 318] at

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16. Because there is no basis in law or fact for Google to claim selective enforcement, Google’s

tenth affirmative defense fails and leave to amend will not be granted.

3. Thirteenth Affirmative Defense

In its thirteenth affirmative defense, Google argues that the Due Process Clause prevents

a prosecutor from “‘attempting to serve two masters” and bars a prosecutor from bringing a case

to advance personal—rather than public—interests. [Dkt. No. 368] at 23. More specifically,

Google explains that, through its due process defense, it will show the influence that AAG

Kanter’s anti-Google bias has had on the filing of this civil action, which “infected this entire

proceeding” and reflects an improper predisposition to find against Google. Id.

Federal ethics laws and regulations do not provide a private right of action, but courts

have allowed judicial review of defenses alleging federal ethics violations that, if factually

sufficient, would otherwise result in improper litigation against a defendant. See Scherer v.

United States, 241 F.Supp.2d 1270, 1283-84 (D. Kans. 2003) (explaining that there is no private

right of action for enforcement of federal ethics violations); 5 C.F.R. § 2635.106(c) (stating that

a violation of the federal ethics rules “does not create any right or benefit, substantive or

procedural, enforceable at law by any person against the United States, its agencies, its officers

or employees, or any other person”), Although improper litigation may result in a due process

violation, courts have only found such a violation when a prosecutor has brought an action to

advance personal, rather than public, interests, and the defendant has presented facts sufficient to

show “actual prejudice” flowing from the alleged bias. Avila v. U.S., 153 F.3d 726 (10th Cir.

1998) (finding a defendant’s allegation of prosecutorial bias under the Due Process Clause

insufficient without demonstrating actual prejudice flowing from the prosecutor’s alleged bias).

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Google’s affirmative defense fails because it is “irrelevant to any issue to be decided by

the jury in this case.” [Dkt. No. 318] at 17. In all of the cases cited by Google to support this

affirmative defense, only one prosecutor was involved in commencing litigation against the

defendant. In other words, the decision to prosecute came down to the decision of a single party

for whom there was evidence of possible impropriety. That is simply not the case here.

Any anti-Google bias AAG Kanter may have would not support dismissing the Amended

Complaint because his bias cannot be imputed to the entire DOJ or to the multiple state attorneys

general who have signed the Amended Complaint. The “disqualification of an entire United

States Attorney’s Office is nearly unprecedented,” United States v. Rodella, 59 F. Supp. 3d 1331,

1348 (D.N.M. 2014), and if the disqualification of one government agency could serve as the

basis for the disqualification of the DOJ as a whole, “the administration of justice would be

irreparably damaged.” Grand Jury Subpoena of Ford v. United States, 756 F.2d 249, 254 (2d

Cir. 1985); see United States v. Bolden, 353 F.3d 870, 879 (10th Cir. 2003) (finding that “every

circuit court that has considered the disqualification of an entire United States Attorney’s office

has reversed the disqualification’).

The “irreparable damage” would be even more egregious in this case because

“disqualifying” the DOJ would ignore the fact that the investigation into Google’s

anticompetitive conduct has spanned the tenure of two different Assistant Attorneys General,

who were appointed during the tenure of two different political administrations, as well as two

Acting Assistant Attorneys General, and it involved the leadership and assistance of dozens of

career prosecutors employed by the Antitrust Division. Moreover, the DOJ is not the only

plaintiff because this action has been joined by 17 different states. Simply put, it is impossible

for Google to show that AAG Kanter’s purported anti-Google bias may have infected these

proceedings.

In support of its view, plaintiffs cite to FTC v. Facebook in which the court found that

even though the FTC chair had previously expressed views about Facebook’s market dominance

and worked on matters relating to antitrust and technology, the FTC Chair’s past statements did

not suggest the type of “personal animosity or financial conflict of interest that has disqualified

prosecutors in the past.” 581 F. Supp. 3d 34, 64 (D.D.C. 2022). Google argues that this case is

dissimilar because the FTC Chair had never represented competitors of Facebook and never

benefitted financially from such representation. Here, it is uncontested that AAG Kanter

dedicated much of his work in private practice to representing Google’s rivals, but AAG

Kanter’s work history is of no moment because government officials do not “stand[] to profit

economically from vigorous enforcement” of the antitrust laws. See Marshall v. Jerrico, Inc.,

446 U.S. 238, 250 (1980). Moreover, appointees to high-level enforcement positions are entitled

to have past experiences with an industry and doing so is neither disqualifying nor a basis for

claiming a due process violation. “If honestly convinced of the defendant’s guilt, the prosecutor

is free, indeed obliged, to be deeply interested in urging that view by any fair means.” Wright v.

United States, 732 F.2d 1048, 1056 (2d Cir. 1984). Because Google cannot show that AAG

Kanter’s purported bias has “infected the entire proceeding,” Google’s thirteenth affirmative

defense fails as a matter of law.

III, CONCLUSION

As stated in open court, these two affirmative defenses raise irrelevant matters, cause

significant and unnecessary discovery issues, may potentially delay resolution of this litigation,

and only detract from the core issue in this litigation—whether Google’s ad tech business

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violates antitrust laws. Moreover, they are not grounded in strong legal precedent. Accordingly,

for the reasons stated in open court and supplemented in this Memorandum Opinion, plaintiffs’

Motion has been granted and Google’s tenth and thirteenth defenses will be dismissed by an

Order to be issued with this Memorandum Opinion.

Entered this 1s □□□ of September, 2023.

Alexandria, Virginia

pA ER

Leonie M. Brinkeina he

United States District Judge.

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