United States et al v. Google LLC Document 368: Memorandum in opposition

Virginia Eastern District Court
Case No. 1:23-cv-00108-LMB-JFA
Filed August 31, 2023

Memorandum in Opposition re [317] MOTION for Judgment on the Pleadings or to Strike as to Google's Tenth and Thirteenth Affirmative Defenses, or in the Alternative for a Protective Order filed by Google LLC. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2 SEALED, # (3) Exhibit 3 SEALED, # (4) Exhibit 4 SEALED, # (5) Exhibit 5 SEALED, # (6) Exhibit 6 SEALED, # (7) Exhibit 7 SEALED, # (8) Exhibit 8 SEALED, # (9) Exhibit 9 SEALED, # (10) Exhibit 10 SEALED, # (11) Exhibit 11 SEALED, # (12) Exhibit 12 SEALED, # (13) Exhibit 13 SEALED, # (14) Exhibit 14, # (15) Exhibit 15 SEALED, # (16) Exhibit 16 SEALED, # (17) Exhibit 17 SEALED, # (18) Exhibit 18 SEALED, # (19) Exhibit 19 SEALED, # (20) Exhibit 20 SEALED, # (21) Exhibit 21, # (22) Exhibit 22, # (23) Exhibit 23, # (24) Exhibit 24)(Reilly, Craig)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
Civil Action No. 1:23-cv-(LMB) (JFA)
- against GOOGLE LLC,
Defendant.
GOOGLE LLC’S OPPOSITION TO THE UNITED STATES’
MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS OR,
IN THE ALTERNATIVE, A PROTECTIVE ORDER
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I.
INTRODUCTION
The Antitrust Division of the Department of Justice (“DOJ”) seeks to cut off inquiry into
the biases of its prosecutor and witnesses by filing an untimely motion on two defenses. DOJ
argues both that Google fails to plead enough facts, but also that Google cannot be allowed to
gather those facts. This contradiction perfectly illustrates the frailty of DOJ’s position and its
ultimate motive. DOJ’s challenge to Google’s defenses is untimely and improper, and DOJ has
failed to show “good cause” to avoid Google’s relevant and narrowly tailored discovery requests.
As the record already establishes, DOJ is seeking at least $300 million in damages, before
trebling, on behalf of eight federal agencies. Notwithstanding its multi-year investigation, DOJ’s
initial outreach to these federal agencies did not begin in earnest until just weeks before it filed
its complaint, and there is hardly any mention of the federal agencies in the complaint. In
addition, federal agency witnesses have testified that they do not view Google’s conduct as
anticompetitive or harmful. Quite the opposite, federal agency witnesses have testified to the
benefits Google has created for them. The federal agencies did not ask DOJ to file a complaint
on their behalf; nor did they understand that they would be participating in this litigation until
sometime after the complaint was filed. These facts demonstrate that the federal agencies are not
the parties on whose behalf DOJ is bringing this case.
So on whose behalf is DOJ bringing this lawsuit? Discovery to date has shown that
DOJ’s investigation focused on two categories of allegedly aggrieved industry participants:
(1) big industry publishers; and (2) competitors of Google. These two categories of industry
participants—big publishers and Google’s ad tech competitors—have something in common:
many of them were clients of Assistant Attorney General Jonathan Kanter (“AAG Kanter”)
while he was in private practice, paying him millions of dollars over a period of fifteen years to
advocate that DOJ and other antitrust enforcers bring antitrust cases against Google. The
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allegations in DOJ’s complaint contain many of the same or similar phrases that AAG Kanter
included in advocacy pieces he prepared on behalf of private paying clients for DOJ and other
antitrust enforcers. It is these big publishers and Google competitors—previously represented by
AAG Kanter while he was in private practice—on whose behalf this case was filed.
“A scheme injecting a personal interest, financial or otherwise, into the enforcement
process may bring irrelevant or impermissible factors into the prosecutorial decision and in some
contexts raise serious constitutional questions.” Marshall v. Jerrico, Inc., 446 U.S. 238, (1980). AAG Kanter’s deep-seated bias against Google—pre-judging Google even before he
assumed public office—violates Google’s Due Process right to a neutral prosecutor. Since
assuming office, AAG Kanter has also treated his former clients differently than Google,
reflecting selective enforcement of the antitrust laws.
The detailed facts in this
opposition—demonstrating how AAG Kanter is using public office to accomplish what he was
unable to do in private practice on behalf of his paying clients—are largely based on publicly
available information. As the events leading up to the filing of this case become clearer,
Plaintiffs, as well as former clients of AAG Kanter, have tried to block Google from learning
more about their roles in orchestrating this lawsuit. This evidence is relevant both to Google’s
defenses, and the motives and biases of witnesses DOJ is likely to call at trial.
Plaintiffs should not be permitted to escape further discovery through a motion for
judgment on the pleadings or a motion to strike. Plaintiffs’ deadline for filing a motion to strike
was June 2, 2023—a deadline that has long passed—and a motion for judgment on the pleadings,
as the Fourth Circuit has stated, “generally cannot reach the merits of an affirmative defense”
except in the “relatively rare circumstances where facts sufficient to rule on the affirmative
defense are alleged in the complaint.” Goodman v. Praxair, Inc., 494 F.3d 458, 468 (4th Cir.

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2007) (en banc). And because the discovery that Google seeks relates not only to its defenses,
but also the biases, motives, and credibility of parties that are likely to be key DOJ witnesses,
DOJ has failed to establish the “good cause” required for issuance of a protective order
foreclosing further discovery on its defenses and witness biases.
II.
FACTUAL BACKGROUND
A.
For Over 15 Years in Private Practice, Google’s Rivals Paid AAG Kanter to
Persuade DOJ to File Ad Tech Litigation.
When President Biden nominated Jonathan Kanter to be the U.S. Department of Justice’s
Assistant Attorney General for Antitrust, the New York Times headline read, “Biden to Name a
Critic of Big Tech as the Top Antitrust Cop,” and described AAG Kanter as “an antitrust lawyer
who has made a career of representing rivals of American tech giants like Google.”1 When AAG
Kanter was confirmed by the Senate, Bloomberg announced, “Senate Confirms Google Foe as
DOJ’s Antitrust Chief,” pointing out his work in private practice as “a lawyer for companies like
Microsoft Corp., Yelp Inc. and News Corp that advocated for antitrust enforcement against
Google.”2 And when AAG Kanter brought this action against Google’s ad tech business, the
Wall Street Journal reported, “DOJ Suit to Break Up Google Was Years in the Making for
Antitrust Chief,” explaining that AAG Kanter “has been one of Google’s main legal foes for
nearly 15 years,” and highlighting his work for several of Google’s rivals, including Microsoft,
Yelp, and News Corp, among others.In his Senate Questionnaire, AAG Kanter described his private practice as working
Lauren Hirsch & David McCabe, Biden to Name a Critic of Big Tech as the Top Antitrust Cop,
N.Y. Times (originally published July 20, 2021), https://nyti.ms/3DnL1Yi.
David McLaughlin, Senate Confirms Google Foe Jonathan Kanter as DOJ’s Antitrust Chief,
Bloomberg (Nov. 16, 2021), http://tiny.cc/ic0avz.
Dave Michaels, DOJ Suit to Break Up Google Was Years in the Making for Antitrust Chief,
Wall St. J. (Jan. 29, 2023), http://tiny.cc/7h1avz.
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behind the scenes to persuade federal and state antitrust agencies to bring cases against his
clients’ business rivals. He highlighted his paid work “on behalf of clients to oppose mergers,
acquisitions, and joint ventures, including Google’s acquisition of DoubleClick,”4 which is now a
central allegation of this lawsuit.
Publicly available information demonstrates that AAG Kanter spent more than 15 years
of his private practice career trying to persuade DOJ and other antitrust enforcers to bring
litigation against Google’s ad tech business on behalf of his clients, many of which are Google’s
top business rivals.
B.
AAG Kanter Has Been Adverse to Google in His Representation of
Microsoft.
In 2007, to help grow its display ads business, Google sought to acquire DoubleClick.The Federal Trade Commission (“FTC”) reviewed the transaction and cleared it.6 That clearance
came despite stiff opposition from one of Google’s chief ad tech rivals, Microsoft, which
engaged in an extensive, months-long campaign to lobby internet companies, consumers, and
regulators to oppose the transaction.7 (Notably, reports stated that Microsoft had itself tried to
purchase DoubleClick, but that Google had beaten its offer.8) AAG Kanter, then a partner at

U.S. Senate Comm. on the Judiciary Questionnaire for Non-Judicial Nominees: Jonathan
Kanter 24, http://tiny.cc/eh1avz (accessed August 30, 2023) (“Kanter Judiciary Questionnaire”).
Louise Story & Miguel Helft, Google Buys DoubleClick for $3.1 Billion, N.Y. Times (Apr. 14,
2007), http://tiny.cc/eodavz.
Fed. Trade Comm’n, FTC File No. 071-0170, Statement of the Federal Trade Commission
Concerning Google/DoubleClick 1 (Dec. 20, 2007), http://tiny.cc/wg1avz.
Elizabeth Montalbano, Microsoft launches campaign against Google-DoubleClick
merger, Computerworld (Sept. 24, 2007), http://tiny.cc/godavz; EU: Microsoft's Last Stand
Against Google's Acquisition of DoubleClick, TechCrunch (Dec. 26, 2007), http://tiny.cc/iodavz.
Steve Lohr, Microsoft Urges Review of Google-DoubleClick Deal, N.Y. Times (Apr. 16),
https://www.nytimes.com/2007/04/16/technology/16soft.html.

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Cadwalader, Wickersham & Taft, was heavily involved in Microsoft’s anti-Google advocacy.AAG Kanter’s anti-Google work on behalf of Microsoft continued after the FTC cleared
the DoubleClick transaction.
In 2009, AAG Kanter helped lobby regulators on behalf of
Microsoft in its attempt to acquire Yahoo! Inc.’s search business.10 And although they have not
yet been produced, Microsoft has indicated its intent to produce two papers “related to” AAG
Kanter’s “representation of Microsoft” in 2010 and 2011, which have been described as
“Google’s Acquisition of Ad Mob: An Anticompetitive Deal to Combine the Top Two Firms in
Mobile Advertising (2010),” and “Anticompetitive Concerns of Google’s Proposed Acquisition
of Admeld (2011).”11 Microsoft, a well-established Google competitor, also paid AAG Kanter to
lobby the FTC to investigate Google in 2012 over conduct relevant to Google’s search business
(which the FTC determined not to be anticompetitive).12 He “was a member of the team[s]” that
filed antitrust complaints against Google on behalf of TradeComet and MyTriggers,13 litigations
that Microsoft reportedly spearheaded as part of a “proxy war” against Google.14 AAG Kanter

Kanter Judiciary Questionnaire at 24; Legal Week, US briefing: The Google slayers, Law.com
(May 19, 2010), http://tiny.cc/95favz; John Hendel, Biden’s Trustbuster Streak Continues with
Kanter Pick, POLITICO (July 21, 2021, 10:00 AM), https://politi.co/3jZDhnB; Steve Lohr &
Cecilia Kang, A Star Corporate Lawyer Now Set to Take On Corporate America, N.Y. Times
(Oct. 28, 2021), http://tiny.cc/kc0avz.
Legal Week, supra note 9; see also Sharon Gaudin, Antitrust Attorney: Microsoft-Yahoo Deal
Won’t Pass Regulatory Muster, Computerworld (Aug. 24, 2009, 6:00 AM), http://tiny.cc/lh1avz.
Ex. 24 (excerpt of Microsoft’s Responses & Objections to Google’s Document Subpoena).

Hendel, supra note 9 (describing Kanter as “a key figure in the FTC’s 2012 antitrust
investigation of Google, in which he represented Microsoft”); see also Fed. Trade Comm’n, FTC
File No. 111-0163, Statement of the Federal Trade Commission Regarding Google’s Search
Practices, In re Google Inc. (Jan. 3, 2013), http://tiny.cc/nh1avz.
Kanter Judiciary Questionnaire at 20-21.

Antitrust Rhetoric Heats Up Between Google, Microsoft, Reuters (Mar. 1, 2010, 9:34 PM),
http://tiny.cc/oh1avz (“A variety of news outlets and blogs are reporting on allegations that
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listed these matters as two of the top ten “most significant” matters he handled in his career.C.
AAG Kanter’s Anti-Google Public Statements Between 2006-2019.
AAG Kanter’s public statements prior to his confirmation as AAG show that he has long
pre-judged that Google has violated the antitrust laws. He publicly stated that he has been
waiting years for DOJ and the FTC to “act swiftly” against Google for its acquisitions of
DoubleClick, AdMob, and Admeld—acquisitions at issue in this suit.16 He has elsewhere
referred to Google as a “monopol[y]” that “stifle[s] innovation” and “economic growth” (despite
expressly stating such an opinion was solely his own).17 He has called for a movement of
antitrust action to “stop” Google.18 And public reports have labeled him an “architect of the
EU’s antitrust case against Google.”AAG Kanter also published an op-ed speculating that Google would violate the antitrust
Microsoft may be engaging in a proxy war against Google, using smaller companies to fight its
battles.”).
Kanter Judiciary Questionnaire, at 20-21. Both lawsuits were dismissed. Geoffrey Manne,
TradeComet's Antitrust Complaint Against Google is Dismissed, Forbes (Mar. 9, 2010),
http://tiny.cc/apdavz; Ron Knox, Google wins motion to dismiss myTriggers lawsuit,
Global Competition Review (Sept. 2, 2011), https://globalcompetitionreview.com/article/googlewins-motion-dismiss-mytriggers-lawsuit.
Open Markets Institute Conference: The New Gatekeepers: Journalism in the Era of
Platform Monopoly (Panel Session 1) at 33:42-36:55 (June 14, 2018), https://youtu.be/40HXpi0I
zDk?t=2022.
Conference of Western Attorneys General: Competition and Innovation in Online Markets
(Panel Session 6) at 13:15-13:51, 15:55-16:22 (Aug. 21, 2017), http://tiny.cc/jf1avz; see also
Jonathan Kanter, Don’t Hand Our TVs Over to Google, N.Y. Times: Opinion (May 30, 2016),
https://nyti.ms/3ly4aQM; Legal Week, supra note 9.
Adam Satariano & Jack Nicas, E.U. Fines Google $5.1 Billion in Android Antitrust Case, N.Y.
Times (July 18, 2018), http://tiny.cc/kf1avz.
Roger McNamee, Biden Has to Play Hardball with Internet Platforms, WIRED (July 24,
2021), http://tiny.cc/lf1avz.

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laws if given the chance.20 He also accused Google of having “a long history of harming content
providers.” Id. The questionnaire he completed for the U.S. Senate Committee on the Judiciary
reflects that AAG Kanter has regularly spoken out against Google on panels, at other
public-speaking events, and in the press.In July 2020, AAG Kanter emailed DOJ about a presentation that he and Susan Athey,
then Microsoft’s Chief Economist, had prepared to encourage DOJ to take antitrust enforcement
action against Google. The email made clear that “Susan and I will each participate on our own
behalf (not for any specific client).”D.
AAG Kanter, on Behalf of His Private Clients, Urged DOJ to Sue Google
Relating to Its Ad Tech Business.
In August 2019, DOJ opened an antitrust investigation into Google’s ad tech business.
DOJ received documents and advocacy materials from many third parties, a number of whom
were represented by AAG Kanter. These Kanter-represented third parties included Google’s ad
tech rivals—Magnite (formerly known as Rubicon), OpenX, and Roku—as well as a number of
large publishers (including News Corp)—some of whom were claiming to experience declining
revenues as consumers were shifting to non-traditional media sources.each retained AAG Kanter and Susan Athey to persuade DOJ to
Kanter, Don’t Hand Our TVs Over to Google, supra note 16.

Kanter Judiciary Questionnaire at 4-13 (listing written publications, speeches & panel
participation, and statements to press).
Ex. 1 (DOJ-ADS-B-0000001123).

E.g., Ex. 2 (DOJ-ADS-B-0000024792, with attached DOJ-ADS-B-0000024793 (
));
Ex. 3 (DOJ-ADS-0000030221 (
)); Ex. 4 (DOJ-ADS-0000037533 (
)); Miles Kruppa
& Sam Schechner, Google Critic Is Cleared to Work on U.S. Antitrust Matters Involving Search
Giant, Wall Street Journal (Jan. 13, 2023, 2:34 pm), http://tiny.cc/updavz (referring to Kanter’s
work for Magnite (f/k/a Rubicon), OpenX, and News Corp); Claude Marx, Kanter gets
bipartisan backing from past DOJ antitrust heads, MLex (Oct. 4, 2021), https://www.mlexwatch.
com/articles/13641/print?section=ftcwatch (referring to AAG Kanter’s work for Roku).

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sue Google for alleged anticompetitive conduct affecting digital advertising.
also
paid AAG Kanter to advocate to the
and to foreign regulators (including
the French Competition Authority) that they
should take antitrust action against Google’s ad tech business.E.
Microsoft, Through Acquisitions, Including the Xandr Acquisition, Has
Developed an Ad Tech Business Substantially Similar to Google’s Ad Tech
Stack.
Microsoft has been building its own comprehensive ad tech offering and is one of the
foremost competitors to Google.
In 2019, it acquired PromoteIQ, a retail media ad tech
company, and renamed Bing Ads to Microsoft Advertising.26 Then on June 6, 2022, Microsoft
acquired Xandr (formerly AppNexus), providing Microsoft—just like Google—with a full ad
tech stack comprising both demand- and sell-side platforms.
As a result of Microsoft’s
acquisition of Xandr, Microsoft’s ad tech stack now includes Microsoft Advertising (an ad
buying tool substantially similar to Google Ads); Xandr Invest, which is a demand side platform
(an ad buying tool substantially similar to Google’s DV360); and Xandr Monetize, which
consists of both a publisher ad server and supply-side platform (an ad selling tool substantially

E.g., Ex. 5 (DOJ-ADS-B-0000021660 (
)); Ex. 6 (DOJ-ADS-B-Ex. 7 (DOJ-ADS-B-0000040065 (
Ex. (DOJ-ADS-0000037484 (
)); Ex. 9 (DOJ-ADS-B-0000001433 (
)).
Ex. 10 (NEWSCORP-DOJCID-00002354); Ex. 11 (NEWSCORP-DOJCID00003628); Ex. (NEWSCORP-DOJCID-00003558); Ex. 13 (DOJ-ADS-0000066206); see also Natasha Lomas,
France fines Google $268M for adtech abuses and gets interoperability commitments,
TechCrunch (June 7, 2021, 7:46 AM), http://tiny.cc/8e0avz (“The publishing groups that made
the original complaint against Google in France [included] News Corp Inc.”).
Jordan Novet, Microsoft buys retail advertising start-up PromoteIQ, CNBC (Aug. 5, 12:11 pm), http://tiny.cc/4qdavz; Rik van der Kooi, Bing Ads is now Microsoft Advertising,
Microsoft Advertising Blog (Apr. 29, 2019), http://tiny.cc/0qdavz.

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similar Google Ad Manager).27 In short, Microsoft offers a suite of ad tech products and services
just like Google’s, and in direct competition with Google, on both the buy and sell side. Yet, to
Google’s knowledge, Microsoft’s acquisition of Xandr was not challenged by antitrust regulators
and did not face any of the same scrutiny that had been directed at Google at the time of its
DoubleClick acquisition. In 2022, “armed with adtech unit Xandr and a global ad sales force,”
Microsoft became “the tech and sales provider for” Netflix’s “new ad-supported streaming
service over the presumed favorites Google and NBCUniversal parent Comcast.”28 At the close
of 2022, Microsoft had advertising revenues of over $11.5 billion, a 25 percent increase over the
preceding year.29 Microsoft has also reportedly begun leveraging its ad tech stack to promote its
first-party products and integrations, including its owned and operated platforms.F.
This Suit Was Filed Shortly After AAG Kanter Completed His Recusal and
Cooling Off Period.
When AAG Kanter took office, he became subject to the standards of ethical conduct for
employees of the executive branch, including 5 C.F.R. § 2635.502(b)(1)(iv). This regulation
precluded his participation in matters involving “any person for whom [he] has, within the last
year, served as” an “attorney.” Pursuant to this regulation, he recused himself from the ad tech
matter “because he had, while in private practice, represented third parties in connection with the
Lucinda Southern, AT&T Sells Xandr to Microsoft, AdWeek (Dec. 21, 2021),
http://tiny.cc/6qdavz. The allegation in the Complaint that Google was “the lone conflicted
representative of both buyers and sellers,” Am. Compl. ¶ 39, ignores that Microsoft—one of
Google’s chief tech rivals, a former client of AAG Kanter—likewise represents both buyers and
sellers across its suite of ad tech tools.
R. Joe, H. Langley, A. Stewart, How Microsoft won Netflix, the ad prize of the year — and why
Google lost it, Business Insider (July 14, 2022), http://tiny.cc/7qdavz.

Microsoft 2022 Annual Report, http://tiny.cc/8qdavz.

James Hercher, Microsoft Is Deprioritizing Third-Party Ad Tech Amid Reorgs And
Layoffs, Ad Exchanger (June 6, 2023), http://tiny.cc/9qdavz.

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investigations of Google’s search and ad tech businesses.” Mot. 5. In addition, AAG Kanter had
to sign the Biden administration’s Ethics Pledge, which contractually committed him to conduct
himself in a manner “that upholds the independence of law enforcement and precludes improper
interference with investigative or prosecutorial decisions of the Department of Justice.”Specifically, “as a condition, and in consideration, of [his] employment in the United States
Government in a position invested with the public trust,” he committed to the “revolving door
ban,” which he agreed would be “binding on [him] and [ ] enforceable under law”:
Revolving Door Ban — All Appointees Entering Government. I will not for a period of
2 years from the date of my appointment participate in any particular matter involving
specific parties that is directly and substantially related to my former employer or former
clients, including regulations and contracts.Based on this pledge and general ethics practice, many members of the press and public
inferred that the nature and extent of AAG Kanter’s previous representations would bar him from
working on Google matters because allowing him to remain in a supervisory role would create,
at a minimum, the appearance of partiality.On November 7, 2022, one year following his appointment, AAG Kanter assumed
leadership of DOJ’s ad tech investigation, citing 5 C.F.R. § 2635.502(b)(1)(iv), Mot. 6, even
though the Revolving Door Ban requires a two-year recusal period for any matter “involving
specific parties that is directly and substantially related to” his “former clients.” AAG Kanter

Exec. Order No. 13989, 86 Fed. Reg. 7029-35 (Jan. 20, 2021).

Id.

E.g., Hirsch & McCabe, supra note 1 (“Mr. Kanter’s critics are likely to question whether his
previous work is a conflict of interest that should keep him out of investigations into the tech
giants.”); Ben Brody, What Can’t Jonathan Kanter Do?, Protocol (July 23, 2021),
https://www.protocol.com/policy/kanter-recusals (“[H]is prior work as a corporate lawyer going
after tech giants may require him to recuse himself from some of the DOJ’s marquee
investigations and cases, including those involving Google”).

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placed lawyers and economists around him who share his connections to Microsoft and an
anti-Google history of work; for example, he hired Susan Athey, who worked for Microsoft since
2007,34 to serve as the Antitrust Division’s Chief Economist.
Google does not know the extent to which AAG Kanter maintains contact with his former
clients concerning this litigation, although he was disclosed as the point of contact for three of
them—Magnite, OpenX, and News Media Alliance—in the State Plaintiffs’ Initial Disclosures in
a parallel proceeding.35 That topic is the subject of pending discovery requests and would cast
even more light on the degree to which AAG Kanter’s public role in bringing this litigation was
inappropriately infected with his previous private practice and financial incentives. It would also
cast light upon the biases of AAG Kanter’s former clients, many of which are percipient fact
witnesses in this litigation given their status as industry participants.
G.
DOJ Sued Google Only After AAG Kanter Began Working on the Case.
In December 2020, when Texas and nine other states sued Google, alleging that its ad
tech business was an illegal monopoly under the federal antitrust laws, DOJ did not file suit,
even though its investigation into Google’s ad tech practices had been pending for over a year.In the five months following the Texas suit, 18 additional actions by various private plaintiffs
were filed asserting similar claims against Google.37 One of these suits was brought by the Daily
Mail, whose attorneys worked closely with AAG Kanter to lobby DOJ to file suit against
Susan Athey Trial Testimony at 1798-99, Epic Games, Inc. v. Apple, Inc., No. 4:20-cv-(N.D. Cal. May 11, 2021), ECF No. 782.

Ex. 14 at A-13, A-16, A-17 (excerpt of State Plaintiffs’ Initial Disclosures, In re Google Digit.
Advert. Antitrust Litig., 1:21-md-03010 (S.D.N.Y.)).

Compl., Texas v. Google, LLC, 4:20-CV-957-SDJ (E.D. Tex. Dec. 16, 2020), ECF No. 1.
See ECF No. 44-2 at 6; see also Schedule of Actions, In re Google Digit. Advert. Antitrust
Litig., MDL No. 3010 (J.P.M.L. Apr. 30, 2021), ECF No. 1-2; In re Digit. Advert. Antitrust
Litig., 555 F. Supp. 3d 1372, 1380 (J.P.M.L. 2021).

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Google.38 DOJ still did not file suit, nor did it do so, in August 2021, when the Judicial Panel on
Multidistrict Litigation centralized the Texas action with the 18 other private actions in the
Southern District of New York.Despite AAG Kanter’s efforts on behalf of his former clients, and the roughly two million
documents produced by Google, five million third-party documents, and 31 depositions of
Google witnesses conducted by the end of February 2022, DOJ did not bring an ad tech
complaint against Google. Nor did DOJ sue in the nine months that followed, during AAG
Kanter’s “cooling off period” when he was effectively recused from the case, despite the fact that
DOJ had access to virtually all of the materials relevant to deciding whether to sue Google. In
sum, DOJ did not bring an ad tech complaint against Google during the three years that AAG
Kanter was not the decisionmaker in the matter.
Despite having been paid by well-established Google rivals to agitate for this lawsuit
while in private practice, on November 7, 2022, AAG Kanter was authorized to lead this action
on behalf of the federal government he had been lobbying. Mot. 6. As soon as AAG Kanter was
“cleared” to lead the matter, 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. The
below chart provides illustrative examples of those antitrust theories advanced by AAG Kanter
on behalf of private clients, and how those theories were incorporated into DOJ’s Complaint:

Ex. 15, DOJ-ADS-B-
See In re Digit. Advert. Antitrust Litig., 555 F. Supp. 3d 1372, 1380 (J.P.M.L. 2021).
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Antitrust Theory Advanced by Kanter on
Behalf of Prior Clients
J. Kanter Letter
(10/17/19):
Ex. (NEWSCORP-DOJCID-00002354, at -55).
J. Kanter Letter
(10/17/19):
Google’s
Ex. 10 (NEWSCORP-DOJCID-00002354, at
-56).
J. Kanter email
(9/12/19):
Ex. (DOJ-ADS-B-0000024792, with attached
DOJ-ADS-B-0000024793, at -798).
J. Kanter email
(9/12/19):
DOJ Complaint Allegations
“Rather than innovate and compete, Google
found a shortcut. In 2007, Google announced
that it would buy DoubleClick for $3.billion.” Compl. ¶ 79. “[I]n 2009, Google
paid $750 million to purchase AdMob.” Id.
¶ 85. “In 2010, Google acquired Invite
Media for approximately $81 million.” Id.
¶ 86. “In 2011, Google bought AdMeld for
approximately $400 million.” Id. ¶ 87. “The
DoubleClick, Invite Media, and AdMeld
acquisitions helped Google achieve dominant
positions at each level of the open web ad
tech stack.” Id. ¶ 88.
“When combined with the various advantages
Google had afforded its ad exchange within
Google’s publisher ad server, this approach
potentially could achieve all of Google’s
goals: inhibit advertisers from transacting
through rival exchanges engaged in header
bidding while allowing Google to redirect
revenue and transactions back to Google’s
ad exchange, where it could charge
supra-competitive fees.” Compl. ¶ 215.
“Google, and Google alone, had control over
both the leading source of advertiser demand
and the dominant publisher ad server. So,
Google programmed its advertiser buying tool
to advantage its ad exchange.” Compl. ¶ 34.
“At the time of the DoubleClick acquisition,
Google’s privacy policies prohibited the
company from combining user data
obtained from its own properties, e.g.,
Search, Gmail, and YouTube, with data

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Page 15 PageID#
Ex. 2 (DOJ-ADS-B-0000024792,
with attached DOJ-ADS-B-0000024793, at
-804).
J. Kanter email
(9/12/19):
Ex. (DOJ-ADS-B-0000024792, with attached
DOJ-ADS-B-0000024793, at -811).
J. Kanter Letter
(10/17/19):
Ex. (NEWSCORP-DOJCID-00002354, at -57).
J. Kanter Letter
(10/17/19):
Ex. (NEWSCORP-DOJCID-00002354, at -56).
J. Kanter email
(9/12/19):
obtained from non-Google websites. But in
2016, as part of Project Narnia, Google
changed that policy, combining all user data
into a single user identification that proved
invaluable to Google’s efforts to build and
maintain its monopoly across the ad tech
industry. Over time, Google used this unique
trove of data to supercharge the ability of
Google’s buying tools.” Compl. ¶ 37 n.3.
“Previously, Google used dynamic allocation
in its publisher ad server to exclude rival
exchanges from meaningful competition. By
only permitting Google’s own ad exchange
to bid in real time—ahead of any other
exchange—for impressions, Google was
unfairly advantaged and competitors were
effectively stymied from competing.” Compl.
¶ 161 n.17.
“Critically, through dynamic allocation,
Google’s ad exchange always received this
‘last look’ advantage, essentially a right to
buy any impression as long as it had at least
one advertiser willing to match the competing
bid price . . . .” Compl. ¶ 164.
“Dynamic allocation was a means by which
Google manipulated its publisher ad server to
give the Google-owned AdX (and only AdX)
the opportunity to buy publisher inventory
before it was offered to any other ad
exchange, and often to do so at artificially
low prices.” Compl. ¶ 21.
“In 2014, Google expanded and further
entrenched its artificial advantages by
introducing ‘enhanced’ dynamic allocation,
which remains in place today. This update
allowed Google’s ad exchange to obtain the

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benefits of dynamic allocation over
inventory potentially covered by direct
contracts between publishers and
advertisers.” Compl. ¶ 120.
Ex. (DOJ-ADS-B-0000024792, with attached
DOJ-ADS-B-0000024793, at -813).
J. Kanter email
(9/12/19):
Ex. (DOJ-ADS-B-0000024792, with attached
DOJ-ADS-B-0000024793, at -816).
J. Kanter
10/17/19):
Ex. (NEWSCORP-DOJCID-00002354, at -57).
J. Kanter email
(9/12/19):
Ex. 2 (DOJ-ADS-B-0000024792, with
attached DOJ-ADS-B-0000024793, at -817).
“Because of the way Google configured DFP,
the winning bid from the header bidding
auction was then sent to Google’s ad
exchange to see if it could beat that price.
Critically, through dynamic allocation,
Google’s ad exchange always received this
‘last look’ advantage, essentially a right to
buy any impression as long as it had at least
one advertiser willing to match the competing
bid price from the header bidding auction.”
Compl. ¶ 164.
“Google was able to increase its data
advantage by obtaining access to the bids of
its rivals for each impression . . . even when
other ad exchanges opted to participate in
Open Bidding, they initially did not have
access to the same data: they were forced to
share their bids with Google without any
reciprocity.” Compl. ¶ 184.
“Google imposed a 5% fee on rival ad
exchanges’ transactions through Open
Bidding, effectively lowering the net bid of
Open Bidding ad exchange participants by
5% relative to AdX’s bid. This additional
5% charge effectively amounted to a 25% or
more increase in the average ad exchange fee,
making bids from rival ad exchanges much
less attractive to publishers.” Compl. ¶ 181.

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Page 17 PageID#
J. Kanter Letter
Google’s
(9/25/2019):
Ex. 13 (DOJ-ADS-0000066206,
at -06, -07, -08).
J. Kanter Letter
(9/25/2019):
Ex. (DOJ-ADS-0000066206, at -09).
H.
“Google degraded the data it made available to
publishers that previously allowed them to
monitor how Google’s ad exchange was
competing against rival ad exchanges. Prior
to late 2019, Google made available to
publishers a ‘data transfer file’ that allowed
eligible publishers to see on an
impression-by-impression basis the individual
bids from competition among ad exchanges
and certain advertising demand sources for the
publishers’ inventory. Publishers could then
respond to changes in the nature of
competition by tweaking the way in which
they made their inventory available to their ad
tech partners. . . . Following the shift to
Unified Pricing Rules and the introduction of
Smart Bidding, Google altered the files to
prevent publishers from linking the bids
from Google’s advertising products to those
from rivals using header bidding for the same
impression. This has made it more difficult
for publishers to make informed choices
about how and where to make inventory
available and to monitor Google’s bidding
behavior for potential anticompetitive
conduct.” Compl. ¶¶ 260-61.
“Of course, any purported concern about
user privacy was purely pretextual; Google
was more than happy to exploit its users’
privacy when it furthered its own economic
interests.” Compl. ¶ 95.
Evidence from FAAs Demonstrates that DOJ Did Not File the Case on Behalf
of the FAAs.
DOJ purports to bring its complaint on behalf of federal agencies,40 specifically the eight
Am. Compl. ¶ 278, ECF No. 120 (“The United States is among the advertisers harmed by
Google’s anticompetitive conduct. United States departments and agencies, including ones in
this district such as the Army, purchase open web display advertising using Google and
non-Google ad tech tools.”); Justice Department Sues Google for Monopolizing Digital
Advertising Technologies, Office of Public Affairs, U.S. Dep’t of Justice Press Release (Jan. 24,
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Page 18 PageID#
Federal Agency Advertisers (“FAA”), but discovery from the FAAs has demonstrated that they
do not believe they have been harmed by Google’s practices. To date, Google has deposed five
FAA managing agents responsible for digital ad buying: (1) Kendall Oliphant, chief of the
contract program office in the communications directorate of the Census Bureau, Ex. (Oliphant Dep. 33:7-34:3); (2) Christopher Karpenko, senior director of customer marketing for
the United States Postal Service (“USPS”), Ex. 17 (Karpenko Dep. 13:20-16:14, 17:16-18:5,
20:4-21); (3) Allen Owens, director of marketing, Navy recruiting command, Ex. 18 (Owens
Dep. 50:13-51:6); (4) John Horning, director for the strategy, innovation, and data directorate at
the Army Enterprise Marketing Office, Ex. 19 (Horning Dep. 62:14-63:5); and (5) Christopher
Koepke, Director of the Strategic Marketing Group in the Office of Communications at the
Centers for Medicare and Medicaid Services (“CMS”), Ex. 20 (Koepke Dep. 7:16-19).
Each of the FAA witnesses who has been deposed to date testified that they did not view
Google’s conduct as anticompetitive within the context of the normal course of their work. Ex.
16 (Oliphant Dep. 63:6-11); Ex. 17 (Karpenko Dep. 139:3-8);
Ex. 18 (Owens Dep.
210:22-211:23, 214:5-12, 216:9-13); Ex. 19 (Horning Dep. 17:25-18:9, 229:2-5, 229:14-16);
Ex. 20 (Koepke Dep. 221:20-222:3, 224:13-17).41 Not only have the FAA witnesses testified
that they do not view Google’s conduct as harmful, each has testified to the benefits Google has
created for them.
Ex. 16 (Oliphant Dep. 298:12-299:21) (Google helped the census bureau
2023), http://tiny.cc/eqdavz (DOJ seeks “treble damages for losses sustained by federal
government agencies that overpaid for web display advertising”).
Given that none of the FAAs believed they had been harmed by Google, it is unsurprising that
multiple FAA witnesses also testified that they had never sought DOJ’s legal advice relating to
Google’s conduct. Ex. 16 (Oliphant Dep. 63:13-64:9)
); Ex. 18 (Owens Dep. 88:25-89:7) (never requested legal advice from DOJ
prior to learning about lawsuit when it was filed); Ex. 19 (Horning Dep. 8:2-23)
.
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Page 19 PageID#
reach its advertising goals for the 2020 census); Ex. 17 (Karpenko Dep. 314:22-315:5)
); Ex. 18 (Owens Dep. 212:8-214:4) (Navy has
in
Google ad buying services Navy uses); Ex. 19 (Horning Dep. 182:25-183:11, 183:22-184:19,
186:13-25, 188:14-23, 231:3-23) (Google digital advertising offerings have provided value to the
Army); Ex. 20 (Koepke Dep. 66:9-73:5, 116:18-117:4, 145:25-146:7) (Google’s digital ad
buying tools
and increase the effectiveness of CMS’s display ads).
In a declaration submitted by DOJ in opposing a motion to compel filed by Google, the
government represented that “a draft complaint had been prepared” prior to December 23, 2022.
Wolin Dec. ¶ 5, ECF 328-1. FAA testimony to date demonstrates that DOJ did not reach out to
the FAAs until after this draft was prepared, undermining any claim that the complaint was
brought on their behalf as the parties in interest. Ex. 16 (Oliphant Dep. 46:1-11, 58:17-59:2,
60:16-61:3); Ex. 17 (Karpenko Dep. 49:7-14); Ex. 18 (Owens Dep. 39:11-20, 49:2-17); Ex. (Horning Dep. 38:8-39:17); cf. Ex. 20 (Koepke Dep. 282:24-283:22). Moreover, many of the
FAA witnesses testified that they were unaware they would be participating in this lawsuit until
around or after the time the Complaint was filed. Ex. 16 (Oliphant Dep. 61:6-12, 71:13-18); Ex.
17 (Karpenko Dep. 50:18-51:4, 53:5-9); Ex. 19 (Horning Dep. 18:22-19:5, 45:5-10); Ex. (Koepke Dep. 280:20-281:10).
IV.
THERE IS NO BASIS TO STRIKE OR GRANT JUDGMENT ON THE
PLEADINGS AS TO GOOGLE’S DUE PROCESS AND SELECTIVE
PROSECUTION DEFENSES.
A.
Legal Standard
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party is entitled to judgment
on the pleadings only when the pleadings, construing the facts in the light most favorable to the

REDACTED VERSION
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non-moving party, (1) fail to state any cognizable claim for relief; and (2) the matter can be
decided as a matter of law. Zeran v. Am. Online, Inc., 129 F.3d 327, 329 (4th Cir. 1997); O’Ryan
v. Dehler Mfg. Co., Inc., 99 F. Supp. 2d 714, 718 (E.D. Va. 2000). A Rule 12(c) motion
“generally cannot reach the merits of an affirmative defense.” Goodman v. Praxair, Inc., F.3d 458, 464 (4th Cir. 2007) (en banc); Sherrod v. Harkleroad, 674 F. App’x 265, 266 (4th Cir.
2017) (courts apply the same standard applied to Rule(b)(6) motions to Rule 12(c) motions); see
also Cohen v. SunTrust Mortg., Inc., 2017 WL 1173581, at *2 (D.S.C. 2017) (“The court rejects
any argument a party may challenge the sufficiency of a defense (other than on grounds the
defense is legally unavailable) under Rule 12(c).”).
Federal Rule of Civil Procedure 12(f) allows a court to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Rule 12(f)
motions are generally viewed 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). “Even where technically
appropriate and well-founded, motions to strike defenses as insufficient are often denied in
absence of a showing of prejudice to the moving party.” Riviera v. City of Chesapeake, 2023 WL
3571930, at *2 (E.D. Va. 2023) (citation omitted). Accordingly, “in reviewing motions to strike
defenses, federal courts have traditionally ‘view[ed] the pleading under attack in a light most
favorable to the pleader.” Haley Paint Co. v. E.I. Du Pont De Nemours & Co., 279 F.R.D. 331,
336 (D. Md. 2012). A motion to strike must be filed “within 21 days of being served with [a]
pleading.” Fed. R. Civ. P. 12(f)(2).
B.
Plaintiff’s Motion Is Procedurally Improper.
Google filed its Answer to the First Amended Complaint on May 12, 2023, ECF No. 208.
Plaintiffs considered filing a timely Rule 12(f) motion to strike; they reached out to Google on
REDACTED VERSION
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May 31, 2023—19 days after Google filed its Answer—to meet and confer on such a motion.
Ex. 21.42 The next day, however, they canceled the meet and confer and informed Google they
would not be filing any motion. Ex. 22. Plaintiffs waited until August 18, 2023 to request that
the Court strike Google’s defenses, ECF No. 317—98 days after receiving Google’s answer.
Given that such a request is untimely under the Federal Rules, Plaintiffs try to avoid Rule 12(f)’s
time bar by seeking alternative relief under Rule 12(c).
Plaintiffs’ Motion should be denied, on the basis that its Rule 12(f) motion is untimely,
and its Rule 12(c) motion is procedurally improper because it is the wrong procedural vehicle for
Plaintiff’s partial challenge to Google’s affirmative defenses.
i. Plaintiffs’ Motion Is Untimely Under Rule 12(c).
A motion for judgment on the pleadings is untimely when filed near the close of fact
discovery, when resolution of the claims at issue depends on a fact-intensive inquiry. E.g.,
Grajales v. Puerto Rico Ports Authority, 682 F.3d 40, 46 (1st Cir. 2012) (“Applying the
plausibility standard to [a pleading’s claims or defenses] after discovery is nearly complete
would defeat” the purpose of a Rule 12(c) or Rule 12(f) motion because such motions are “by []
nature, a threshold inquiry, and logic strongly suggests that it occur prior to discovery.”); cf.
Herring v. Lapolla Indus., Inc., 2013 WL 12148769, at *1 (D.S.C. 2013) (denying Plaintiff’s
motion to stay discovery for resolution of Plaintiffs’ end-of-discovery Rule 12(c) motion because
“Plaintiff . . . could have filed his motion for judgment on the pleadings earlier in the case”).
Because “once the parties have invested substantial resources in discovery, a district court should
Google’s Request for Production Number 40, seeking documents relating to the affirmative
defenses at issue, was served on March 27, 2023. Ex. 23 (excerpt of Google’s First RFP to the
United States) (Request 40 seeks documents related to AAG Kanter’s “participation in the
Investigation and/or this Action, including the decision to bring this Action, in light of his (a)
prior representation of providers of Ad Tech Products and/or organizations connected to Display
Advertising; or (b) actual or perceived adversity to Google.”).
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hesitate to entertain a Rule 12(c) motion.” Grajales, 682 F.3d at 46. Claims should be decided
on an evidentiary record, either based on a motion for summary judgment or at trial.
This court’s analysis in Biniaris v. Hansel Union Consulting, PLLC is instructive, though
the ruling ultimately turned on other grounds. There, a party brought a Rule 12(c) motion nearly
four months after the answer was filed, after the court had held the Rule 16(b) conference, and
mid-way through discovery. Biniaris, 382 F. Supp. 3d 467, 471 (E.D. Va. 2019). The court
questioned whether the movants’ motion was timely under Rule 12(c), and held that Rule 12(c)
motions were improper after the parties had engaged in substantial discovery.
The court
reasoned that “it is not clear that [the] Motion was made ‘early enough not to delay trial,’
considering the potential delay that would arise if [the] Motion was granted and Biniaris was
permitted leave to amend her pleadings, thus requiring a new responsive pleading from Hansel
and potentially a new Rule 16(b) Scheduling Conference.” Id.
ii. Rule 12(c) is an improper vehicle to challenge Google’s affirmative defenses.
A Rule 12(c) motion on a defense should only be granted if it appears that the
non-moving party cannot prove “any set of facts in support of his claim” and the claim may be
resolved as a matter of law. Priority Auto Grp., Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th
Cir. 2014). That standard is not met here.
While Plaintiffs cite the Iqbal/Twombly standard as a ground for granting judgment on the
pleadings for Google’s due process and selective enforcement defenses, “the trend in this District
in recent years has been not to apply the [Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009)] standard to affirmative defenses.” Van Vleck v.
Sallyport Global Holdings, Inc., 2019 WL 13297195, at *3 (E.D. Va. 2019); ISK Biocides, Inc. v.
Pallet Mach. Grp. Inc., 2022 WL 19976453, at *2 n.1 (E.D. Va. 2022) (declining to apply

REDACTED VERSION
Page 23 PageID#
Twombly/Iqbal heightened pleading standard to affirmative defenses). Therefore, “[a]n
affirmative defense may be pleaded in general terms and will be held to be sufficient . . . as long
as it gives plaintiff fair notice of the nature of the defense.” Clem v. Corbeau, 98 F. App’x 197,
203 (4th Cir. 2004). Fair notice is provided where the “challenged defenses are contextually
comprehensible and possibly related to the controversy.” Van Vleck, 2019 WL 13297195, at *3.
More importantly, Plaintiffs cite no authority for applying the Iqbal/Twombly standard to
defenses, near the close of fact discovery, when the plaintiff has “fair notice of the factual basis”
of Google’s defenses. Cf. Bradshaw v. Hilco Receivables, LLC, 725 F. Supp. 2d 532, 536 (D.
Md. 2010) (Iqbal/Twombly pleading standard is “intended to ensure that an opposing party
receives fair notice of the factual basis for an assertion contained [in] a claim or defense”).
Plaintiffs are unquestionably on notice of the factual basis for Google’s defenses, as
demonstrated by the extensive factual arguments in their brief. The appropriate remedy, if any,
at this juncture is not to strike the defenses or grant judgment on the pleadings, but rather to
allow Google to amend its defenses to conform to the evidence in discovery. E.g., Composite
Resources, Inc. v. Alphapointe Combat Medical Sys., LLC, 2018 WL 3822468, at *4 (W.D.N.C.
2018) (“Typically, courts favor amendments that conform to evidence seen as fair without
placing a burden on the opposing party.”).What Plaintiffs really seek here is a premature summary judgment decision on the merits
of the defenses, seeking to preempt Google from obtaining the full benefit of discovery to defend
its position. That is not the purpose of Rule 12(c). A motion for judgment on the pleadings
Courts usually allow amendment of a pleading in response to a Rule 12(c) motion. E.g., Scott
v. Fam. Dollar Stores, Inc., 733 F.3d 105, 108 (4th Cir. 2013) (reversing district court’s denial of
motion to amend following opposing party’s 12(c) and 12(f) motion); Drapkin v. Mjalli, 441 F.
Supp. 3d 145, 159 (M.D.N.C. 2020) (granting motion to amend in response to 12(c) motion).
There would be no prejudice to Plaintiff from such an amendment because it already knows the
factual basis for Google’s defenses.
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“generally cannot resolve the merits of an affirmative defense” except in the “relatively rare
circumstances where facts sufficient to rule on the affirmative defense are alleged in the
complaint.” Goodman, 494 F.3d at 464; see also CertusView Techs., LLC v. S&N Locating
Servs., LLC, 111. F. Supp. 3d 688, 703 (E.D. Va. 2015) (“a court may not consider matters
outside the pleadings without converting a Rule 12(c) motion into a motion for summary
judgment under Rule 56”).
Here, as the parties’ briefs demonstrate, resolution of Google’s defenses is dependent on
a “fact-intensive” inquiry and therefore is “ill suited to judgment on the pleadings.” Colon
Health Centers of Am., LLC v. Hazel, 733 F.3d 535, 546 (4th Cir. 2013). E.g., Lewis v. Excel
Material LLC, 2013 WL 4585873, at *3 (D.S.C. 2013) (where “the pleadings do not resolve all
the factual issues in this case” a trial “on the merits would be more appropriate than an attempt at
resolution of certain issues of the case on a Rule 12(c) motion”); Raynor v. G4S Secure Sols.
(USA) Inc., 283 F. Supp. 3d 458, 465 (W.D.N.C. 2017) (denying motion for judgment on
pleadings because “factual issues are more appropriately resolved after discovery at summary
judgment”); Scales v. Webb, 2016 WL 1267756, at *5 (M.D.N.C. 2016) (denying 12(c) motion
where it was “simply premature” because court could not “resolve factual issues”).
C.
Google’s Due Process Defense Depends on the Resolution of Factual Issues
that Cannot Be Resolved on a Rule 12(c) Motion.
“The requirement of fundamental fairness assured by the Due Process Clause” prevents a
prosecutor from “attempting at once to serve two masters.” Granger v. Peyton, 379 F.2d 709,
714 (4th Cir. 1967). Due Process bars a prosecutor from bringing a case in order to advance
personal—rather than public—interests. Id. “A scheme injecting a personal interest, financial or
otherwise, into the enforcement process may bring irrelevant or impermissible factors into the
prosecutorial decision and in some contexts raise serious constitutional questions.” Marshall v.

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Jerrico, Inc., 446 U.S. 238, 249-50 (1980).
Lawyers for the government are “the representative[s] not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all.” Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, (1987) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)); accord Freeport-McMoRan Oil
& Gas Co. v. FERC, 962 F.2d 45, 47 (D.C. Cir. 1992) (quoting Berger, 295 U.S. at 88). In this
representative capacity, a government lawyer’s interest is not that the government “shall win a
case, but that justice shall be done.” Berger, 295 U.S. at 88 (government lawyer “is in a peculiar
and very definite sense the servant of the law, the twofold aim of which is that guilt shall not
escape or innocence suffer”); accord Young, 481 U.S. at 803; Wright v. United States, 732 F.2d
1048, 1056 (2d Cir. 1984) (a prosecutor is “not disinterested if he has, or is under the influence
of others who have, an ax to grind against the defendant, as distinguished from the appropriate
interest that members of society have in bringing a defendant to justice with respect to the crime
with which he is charged”). This neutrality principle implicates Due Process because it ensures
fairness to the investigated party.
This neutrality principle is enshrined in, among other things, the Biden Ethics Pledge,described above, as well as the International Competition Networks’ (“ICN”) Ethics Rules in
Competition Agencies, applicable ABA Standards, and accepted norms:
Other Executive Office officials have sought limited waivers of the Biden Ethics Pledge in
circumstances not nearly as concerning as those present here, and have been precluded from
participating in decision making relating to prior advocacy work. E.g., Ex. Limited Waiver for
Vanita Gupta (Sept. 2, 2021), http://tiny.cc/lqdavz (limited waiver precluded participation in
“decisions to initiate investigations in matters on which she lobbied the Department”); Limited
Waiver for Raina Thiele (Feb. 16, 2022), http://tiny.cc/mqdavz (“limited waiver does not permit
you to participate in matters in which you previously participated personally and substantially as
a consultant”); Limited Waiver for Marianne Engelman-Lado (Apr. 14, 2021),
http://tiny.cc/qqdavz (granted limited waiver but required to remain recused from matters in
which she “participated personally and substantially previously”).
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● ABA Standards: “The prosecutor should not permit the prosecutor’s professional
judgment or obligations to be affected by the prosecutor’s personal, political,
financial, professional, business, property, or other interests or relationships. A
prosecutor should not allow interests in personal advancement or aggrandizement
to affect judgments regarding what is in the best interests of justice in any case.”
ABA Standards for the Prosecution Function, Standard 3-1.7(f).
● ICN Standards: “Agency officials should not have relational or financial conflicts
of interest relating to the investigations and proceedings they participate in or
oversee. To help ensure the impartiality of investigations and decision making,
agencies should have ethics rules to prevent potential conflicts, e.g. recusals or
‘cooling-off’ periods.” International Competition Network’s Recommended
Practices for Investigative Process, Section V.8.1.
Through its due process defense, Google will show the influence that AAG Kanter’s
anti-Google bias—shared by former clients of AAG Kanter while he was in private
practice—has had on the filing of this case. That bias has shaped and infected this entire
proceeding, and reflects an improper predisposition to find against Google, rather than ensure
that justice is done. Marshall, 446 U.S. at 242-43. As discovery to date establishes, industry
participants—who were not represented by AAG Kanter—view the marketplace as competitive,
with Google providing significant benefits to the advertising ecosystem. Even managing agents
of the FAAs, each of whom has the job of advertising for the FAAs, have testified in depositions
that Google’s products and services have benefited them, and they do not feel aggrieved by
anything Google has done. Rather than reflecting commercial realities, the allegations and
claims in the case are based on the positions that AAG Kanter advanced on behalf of his private
clients. As reflected in the above side-by-side chart comparing AAG Kanter’s advocacy for
private paying clients with the allegations in the complaint, AAG Kanter’s advocacy provided
the foundation for many of the allegations in the complaint. His influence on shaping the
complaint’s allegations has infected this entire proceeding. The decision to prosecute this case
was therefore not that of a prosecutor who is not “motivated by improper factors.” Marshall,

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446 U.S. at 250. Those facts distinguish the present case from FTC v. Facebook, Inc. where
Facebook did not argue that FTC Chair Khan was pursuing the interests of former paying clients.
581 F. Supp. 3d 34, 61-62 (D.D.C. 2022). Instead, Facebook alleged that Chair Khan’s past
personal views regarding Facebook’s monopoly power made it improper for her to serve as the
deciding vote in a 3-2 decision to refile a lawsuit the FTC had previously brought before her
tenure at the FTC even began. Id.
The evidence Google has presented demonstrates Google’s due process defense cannot be
resolved on the basis of the pleadings, and Plaintiffs’ motion to strike the defense or for
judgment on the pleadings should be denied.
D.
Google’s Selective Enforcement Defense Depends on the Resolution of
Factual Issues that Cannot Be Resolved on a Rule 12(c) Motion.
Selective enforcement is a defense in a civil enforcement action. Plaintiff does not point
to any authority (binding or otherwise) categorically barring a selective enforcement defense. On
the contrary, multiple courts have recognized the availability of the defense, denying similar
motions brought by government enforcers. See, e.g., City of Chicago v. DoorDash, Inc., 636 F.
Supp. 3d 916, 922 (N.D. Ill. 2022) (denying motion to strike defendant’s selective prosecution
affirmative defense); SEC v. Lemelson, 334 F.R.D. 359, 362 (D. Mass. 2020) (denying SEC’s
motion for protective order relating to defendant’s selective enforcement and bias affirmative
defenses); United States v. McGraw-Hill Cos., Inc., 2014 WL 1647385, at *10-13 (C.D. Cal.
2014) (denying United States’ motion to strike selective prosecution affirmative defense and
permitting discovery); United States v. Am. Elec. Power Serv. Corp., 218 F. Supp. 2d 931,
940-41 (S.D. Ohio 2002) (denying United States’ motion to strike selective prosecution
affirmative defense).
Selective enforcement contains two elements: (1) discriminatory effect, and

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(2) discriminatory purpose. Central Radio Co. Inc. v. City of Norfolk, 811 F.3d 625, 634-35 (4th
Cir. 2016).
Discriminatory effect. The discriminatory effect of a prosecutor’s selective enforcement
may be shown by the non-prosecution of similarly-situated parties. United States v. Hastings,
126 F.3d 310, 313 (4th Cir. 1997). This only requires “some evidence tending to show the
existence” of “different treatment of similarly situated persons.” McGraw-Hill, 2014 WL
1647385, at *12; see also Hastings, 126 F.3d at 313.
The circumstances here show that the United States has singled out Google. Despite
general public comments about his intention to heighten scrutiny of “big tech,” such as stating
that he has been a “strong proponent of vigorous antitrust enforcement in the technology area” at
his November 2021 nomination hearing, AAG Kanter has done little to step up antitrust
enforcement against any other “big tech” companies besides Google.
While Google’s
acquisition of DoubleClick received intensive antitrust scrutiny, and was challenged by
Microsoft—then represented by Kanter—Microsoft’s acquisition of Xandr did not receive any
antitrust review, to Google’s knowledge, even though the transaction resulted in Microsoft
obtaining an ad tech stack strikingly similar to the Google ad tech stack, with features and
characteristics that DOJ criticizes. And, even though the DoubleClick acquisition was approved
by the FTC 16 years ago, AAG Kanter is now seeking to unravel the transaction. AAG Kanter
has provided no indication that he has similar plans to unravel the Microsoft ad tech stack. In a
similar case, the defendant made a sufficient showing of discriminatory effect where it was the
only one of the three major credit rating agencies to face a government enforcement action.
McGraw-Hill, 2014 WL 1647385, at *1-2, 12 (“Of the three major ratings agencies,” United
Cat Zakrzewski & Rachel Lerman, Tech Adversary Kanter Tells Senators He Will Pursue
‘Vigorous’ Antitrust Enforcement in Nomination Hearing, Wash. Post (Oct. 6, 2021),
http://tiny.cc/tqdavz.

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States sought civil penalties “against only S&P” for deliberately misrepresenting integrity of
credit ratings of certain structured debt securities at the center of the 2008 financial crisis). While
the court recognized that the “Government may indeed have many good reasons for its
decisions,” it found that the defendant was nonetheless “entitled to test the Government’s case
through discovery.” Id. at 12.
Plaintiffs’ cases involved remarkably weaker showings of discriminatory effect. For
example, in AT&T—a merger challenge—the defendants pointed the court to a comparator
merger where the government did file an enforcement action to enjoin the merger. 290 F. Supp.
3d at 4. In SEC v. Western International Securities, Inc., the defendants were challenging
enforcement of a new regulation, believing that “the mere fact it [was] the subject of the SEC’s
first-ever lawsuit to enforce” the new regulation “means that it [was] the victim of selective
enforcement.” 2023 WL 2480732, at *9 (C.D. Cal. 2023). Google’s situation is nothing like
those cases: DOJ has not brought an enforcement action against Microsoft nor is DOJ bringing
its “first-ever” lawsuit under the Sherman Antitrust Act.
Discriminatory purpose. The discriminatory-purpose prong may be satisfied by showing
the decision to prosecute was “invidious or made in bad faith.” Hastings, 126 F.3d at 313.
Several factors are probative of this element, including: “the specific sequence of events leading
up to the particular decision being challenged, including any significant departures from normal
procedures.” Central Radio, 811 F.3d at 635.
AAG Kanter’s long history of critical comments of Google and advocacy on behalf of
third-parties critical to this litigation satisfies the “some evidence” requirement of discriminatory
intent. McGraw-Hill, 2014 WL 1647385, at *12. In McGraw-Hill, the Treasury Secretary made
multiple statements to the defendant corporation expressing his displeasure with the company’s

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downgrade of the United States’ credit rating. Id. (United States opened civil investigation in
2009 but did not bring an enforcement action until after S&P downgraded United States’ credit
rating in 2011). While the court recognized that the Secretary’s statements were “susceptible to
several interpretations” and it was “unclear whether there [was] a nexus between his displeasure
and the Department of Justice’s litigation decisions,” it found that “such open questions are
properly answered after—not before—discovery.” Id. (emphasis added). Even more probative
here, unlike in McGraw-Hill, AAG Kanter controls the Department of Justice’s antitrust
enforcement decisions—there is a direct, not a dotted line, between the circumstantial evidence
of AAG Kanter’s animus towards Google and this lawsuit. Like in McGraw-Hill, Google is
“entitled” to discovery on its selective enforcement claim. Id.
V.
INDEPENDENT OF GOOGLE’S DEFENSES, THE REQUESTED DISCOVERY
IS RELEVANT TO THE BIASES, MOTIVES, AND CREDIBILITY OF PARTIES
THAT ARE LIKELY TO BE KEY DOJ WITNESSES.
Plaintiff cannot meet its burden of demonstrating good cause for issuance of a protective
order, precluding document and deposition testimony from the United States. “Good cause
generally requires ‘demonstrating that specific prejudice or harm will result if no protective order
is granted.’” In re Zetia (Ezetimibe) Antitrust Litig., 2022 WL 18109999, at *2 (E.D. Va. 2022).
“Protective orders are ‘sparingly used and cautiously granted.’” Id.
Apart from its defenses, the Federal Rules allow discovery to challenge witness
credibility “not otherwise relevant to the claims or defenses.” Amendments to Federal Rules of
Civil Procedure, 192 F.R.D. 340, 389 (2000). “Proof of bias is almost always relevant because
the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all
evidence which might bear on the accuracy and truth of a witness’ testimony.” United States v.
Abel, 469 U.S. 45, 52 (1984).
Courts regularly grant discovery of evidence to challenge

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credibility. See, e.g., Minor v. Bostwick Lab’ys, Inc., 2012 WL 13028138, at *2 (E.D. Va. 2012)
(granting motion to compel because discovery included “documents . . . that impact [potential
witness’] credibility”).
While Google cannot know, for example, what documents responsive to Request 40 will
show, at a minimum, those documents should provide Google with material to use on
cross-examination to bring out the biases of witnesses, including biases of former AAG Kanter
clients who are likely to be key DOJ witnesses. Establishing a witness’s “partiality” is “always
relevant,” “affecting the weight of his testimony.” United States v. Turner, 198 F.3d 425, 429 n.(4th Cir. 1999); see also e.g., Dorman v. Annapolis OB-GYN Assocs., P.A., 781 F. App’x 136,
144 (4th Cir. 2019) (“[T]he second major function of cross examination is to show that the
witness is biased, prejudiced, or untrustworthy for any reason.” (ellipsis and quotation marks
omitted)).
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion should be denied.

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Dated: August 31,
Respectfully submitted,
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-craig.reilly@ccreillylaw.com
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-eric.mahr@freshfields.com
Counsel for Defendant Google LLC

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