Dive Brief:

• Google failed in its effort to force Department of Justice antitrust chief Jonathan Kanter off the agency’s case against its ad-sale technology dominance.
• U.S. District Judge Leonie Brinkema of the Eastern District of Virginia ruled last week that Kanter doesn’t have to recuse himself for what Google calls bias against it because of his years in private practice working on behalf of the company’s biggest competitors. 
• Nevertheless, Brinkema said, DOJ should “use some wisdom” in deciding whether Kanter should stay on the case, Reuters reported.

Dive Insight:

In its case against Google that it brought in January, DOJ claims the company has used strategic acquisitions to buy its way into dominance of the ad-tech space.

The department claims the company has locked publishers into a system that limits advertiser’s bidding options and manipulates auction mechanics to deprive rivals of scale.

It’s the second of two antitrust cases the department has brought against the company. The other is further along and concerns the company’s well-known search function dominance. A trial for that second case started last week and is expected to run through November.  

Accusations of bias

Google has long argued that Kanter can’t be an objective prosecutor of it on antitrust matters because of a longstanding antipathy he’s had for the company. 

“Assistant Attorney General 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,” the company said last month in a filing. 

In that filing, Google accused DOJ of trying to stop it from getting the information it needs to defend itself against what it considers Kanter’s improper selective enforcement of antitrust laws. “Plaintiffs [DOJ and states bringing the case] should not be permitted to escape further discovery,” the company said. 

The judge has yet to rule on that matter, but in her ruling last week, she made it clear Kanter’s role remains an issue that DOJ needs to think about even if there isn’t a legal reason for him to be recused from the case. 

The judge, Reuters reported, “seemed skeptical during a court hearing that he should be involved.”

Google did not immediately respond to a request for comment.