Google stacks its legal team with former DOJ employees as it faces antitrust cases
People walk near the Google offices on July 04, 2022 in New York City.
John Smith | View Press | Getty Images
Google‘s parent company Alphabet has stacked its legal team with former Department of Justice employees as it fights two separate antitrust lawsuits from the agency, public profiles show.
Former DOJ employees make up both its in-house team and members of outside counsel firms it employs. The company has hired three former DOJ officials into regulatory roles since May 2022, and one before that in 2021, according to public information including social media profiles. Google also uses four different outside counsel firms loaded with nearly 20 former DOJ officials, many of whom worked in the Antitrust Division at various times.
Such hiring to its internal regulatory team is a reflection of the intense scrutiny Google is facing from governments around the world. It can be a signal that a company anticipates dealing with regulatory challenges in years to come, even if it doesn’t know exactly what form it’ll take yet, according to two former government officials.
“When companies find themselves under intense scrutiny from regulatory authorities, antitrust law or otherwise, they make moves like this,” said Bill Kovacic, a former Federal Trade Commission chair who now teaches antitrust law at George Washington University.
Google now faces two antitrust challenges from the DOJ, both to its search and ad tech businesses, and additional challenges from a slew of state attorneys general. Regulators around the world, including in Europe and Australia, have also presented policy and enforcement hurdles.
Google’s hiring is not surprising for a company under such a microscope, according to Doug Melamed, a former acting assistant attorney general at the DOJ Antitrust Division who’s now a scholar-in-residence at Stanford Law School.
The company had already been fighting one complex antitrust case that would likely require a team of 10 to 15 lawyers alone, according to Melamed, when the Department brought its second antitrust challenge against the company earlier this year.
“They don’t have the capacity to handle a case like that just sitting idle,” Melamed said. “They’ve got to now think about well, what outside lawyers are available that have to have the time and expertise to handle this case? And then, do I have the in-house capability to support it and supervise it?”
The added threat of new legislation targeting Google’s business, and that of other tech firms, looms. In the near term, it appears that a massive lobbying campaign by the industry has successfully delayed the most disruptive reforms. But the possibility of renewed energy around that legislation still hangs over the industry, and a company like Google “can take nothing for granted now,” Kovacic said, adding that’s likely a reason for the company to build out its regulatory forces.
“New entrants and new innovations are driving competition and delivering value for America’s consumers, publishers, and merchants,” a Google spokesperson said in a statement for this story. “We’re proud of our services and we look forward to making our case in court.”
Revolving door hiring
Alphabet now has at least five former DOJ staffers on its legal team, including Google’s director of competition Kevin Yingling, who’s been with the company for more than a decade and worked as a trial attorney at the Department of Justice from 2000 to 2005, according to his LinkedIn.
The company hired Kate Smith as counsel for Alphabet’s regulatory response, investigations and strategy unit in February 2021, according to LinkedIn. Smith was a trial attorney in the DOJ’s Civil Frauds division from September 2015 until January 2021.
In May 2022, according to LinkedIn, Alphabet hired Mike Kass, a former trial attorney in the DOJ’s Civil Fraud section, as its regulatory and litigation counsel for products.
A month later, the company hired Seema Mittal Roper as counsel on its regulatory response team. Mittal Roper worked as an assistant U.S. attorney for the DOJ in Maryland from 2013 to 2018, according to LinkedIn.
Most recently, the company hired Jack Mellyn as strategy counsel on its regulatory team. Mellyn was previously an attorney advisor and then acting assistant chief in the DOJ’s competition policy and advocacy section, according to a previously available social media profile.
It’s not clear which employees are working on the specific matters before the DOJ and Kass’ role appears focused outside of antitrust. It’s likely these employees never worked on Google-related matters they’re dealing with now during their time in government, given their dates and areas of previous employment, as well as federal ethics rules that bar certain conflicts.
But experts say this kind of hiring, which is common among businesses faced with regulatory scrutiny, can still be beneficial to a company because of the unique insight, touch or credibility that an ex-government attorney might hold when it comes to their former colleagues.
“There are lots of lawyers out there. But only alumni of an office really understand how that office works,” said Jeff Hauser, executive director of the Revolving Door Project, which tracks the business ties of executive branch officials. “That means its strengths and weaknesses, that means the tendencies of people in that office. And they can therefore give much more concrete intelligence and better-informed advice to their client.”
Hauser said this may mean the lawyers could advise a client or employer to flood the agency with information rather than comply with a certain document request, knowing that the enforcers don’t have the capacity to deal with it. Or, they might suggest strategies to approach a deposition, knowing the government staffer conducting it.
“A lawyer who’s had experience in the government doesn’t bring information about the specific matters of the companies involved, but rather brings a general perspective about how the agency is approaching these kinds of problems,” Melamed said.
Enforcement agencies also often have to trust whether they believe the target of an investigation has complied with its requests. Hauser said the agencies may be more inclined to take the word of their former colleagues, compared to a more removed attorney.
A recent event shows what can happen when that trust is broken. The DOJ last month accused Google of destroying chat messages it should have kept under a litigation hold related to the investigation. The DOJ made the accusation in a legal filing after Epic Games raised the concern in its own antitrust litigation against Google.
A Google spokesperson said in a statement at the time of the DOJ’s filing that they “strongly refute the DOJ’s claims.”
Google also works with outside counsel firms on its antitrust cases, including Axinn, Freshfields, Ropes & Gray and Wilson Sonsini, based on reports, statements and legal filings. Those firms collectively have around 20 former DOJ employees on their staff, many of them working in antitrust. Though these attorneys may not all work on Google matters, the firms themselves often tout the benefit of former government officials in bringing a helpful perspective to clients.
For example, Freshfields says on its website that its “deep bench of former DOJ and FTC trial attorneys gives us unique insight into how the enforcement agencies approach enforcement in general and litigation in particular.”
Kovacic said agency experience is something companies look for in hiring outside firms.
“In deciding who to retain, what law firm to retain or what economic consultancy to retain, they would place a lot of weight on how many former government officials are in those firms,” Kovacic said.
Freshfields attorneys Julie Elmer and Eric Mahr have led Google’s defense against an advertising technology monopolization case brought by a group of states led by Texas, The New York Times reported in 2021. And Bloomberg Law reported this year that Mahr will also lead its defense in the ad tech case brought by the DOJ.
Mahr was director of litigation for the DOJ Antitrust Division from 2015 to 2017, according to the Freshfields site, and Elmer worked as a trial attorney in the Antitrust Division from 2015 to 2020, according to her LinkedIn profile.
Revolving door hiring goes both ways between the public and private sectors, with government officials often working for previous employers or clients who become relevant in their work. For example, DOJ antitrust chief Jonathan Kanter previously worked for clients including Microsoft and Yelp which have complained of Google’s allegedly anticompetitive behavior.
Ultimately, however, Kanter was cleared to work on cases and investigations involving Google, despite the company’s suggestion that his past work should cast doubt on his ability to be fair in such matters.
The DOJ and Wilson Sonsini declined to comment. The three other firms mentioned did not immediately provide a comment for this story.
Limits for former government employees
There are limits on what former government officials can work on under federal ethics and Bar rules.
For example, the DOJ’s website says that former employees can’t represent someone before the government on an issue involving parties they “personally and substantially” worked on during their time in government. For two years after leaving the Department, a former employee also cannot represent anyone before the government in a matter involving parties they know “was pending under his official responsibility for the last year of government service and in which the U.S. is a party or has a substantial interest.”
And for one year after leaving the agency, former senior employees cannot represent someone before the agency “with the intent to influence” the DOJ on a pending matter or one in which it has an interest.
Personal and substantial work on a matter within government doesn’t depend on the length of time devoted to it, but the role a person played in potentially influencing the outcome or direction, according to Virginia Canter, the chief ethics counsel at Citizens for Responsibility and Ethics in Washington (CREW) who previously advised government officials on ethics at agencies including the Securities and Exchange Commission and the Treasury Department.
But even if a former government official can’t work on a specific matter they were privy to during their earlier employment, their insight might still be useful to a company.
“You can read about it, but when you’re actually part of dealing with these cases, you know that there are certain factors that are going to either act as mitigating or … that are going to more favorably incline you to bring a case,” Canter said. “It’s just your general knowledge and experience.”
When companies hire former government officials, they may also have the idea that those employees will be viewed more favorably by the current regime.
“Maybe there’s just this general impression that they’re trying to surround themselves with what will be perceived by their former colleagues as the good guys,” Canter hypothesized.
Some might argue that experience could be beneficial to the government in some cases, Canter noted. A former government employee might have a deeper understanding of the importance of compliance or providing certain information to officials, for example, having seen up close what could be at stake if they don’t.
Hauser said it’s unlikely DOJ leadership, especially Kanter, who has made a point to bring more aggressive cases in the tech space and overall, would be overly swayed to view things Google’s way in ongoing matters. But, he said, the impact of former DOJ staff employed by Google could be more influential in an emerging issue, where there’s an opportunity to leave a first impression on senior leadership about it.
The degree of this kind of influence may be relatively small on the level of an individual case, Hauser said, but for a company under such a high degree of regulatory scrutiny, it could add up.
“You’re talking about billions and billions of dollars of potential implications for Google’s net worth,” Hauser said. “Relatively small changes in the scope of the investigation, the timeframe of the investigation, can be very big, even if they don’t go to the overall question of will there be any lawsuits by the Justice Department against Google.”
WATCH: How US antitrust law works, and what it means for Big Tech
Alex Karp, CEO of Palantir Technologies speaks during the Digital X event on September 07, 2021 in Cologne, Germany.
Andreas Rentz | Getty Images
Palantir shares continued their torrid run on Friday, soaring as much as 9% to a record, after the developer of software for the military announced plans to transfer its listing to the Nasdaq from the New York Stock Exchange.
The stock jumped past $64.50 in afternoon trading, lifting the company’s market cap to $147 billion. The shares are now up more than 50% since Palantir’s better-than-expected earnings report last week and have almost quadrupled in value this year.
Palantir said late Thursday that it expects to begin trading on the Nasdaq on Nov. 26, under its existing ticker symbol “PLTR.” While changing listing sites does nothing to alter a company’s fundamentals, board member Alexander Moore, a partner at venture firm 8VC, suggested in a post on X that the move could be a win for retail investors because “it will force” billions of dollars in purchases by exchange-traded funds.
“Everything we do is to reward and support our retail diamondhands following,” Moore wrote, referring to a term popularized in the crypto community for long-term believers.
Moore appears to have subsequently deleted his X account. His firm, 8VC, didn’t immediately respond to a request for comment.
Last Monday after market close, Palantir reported third-quarter earnings and revenue that topped estimates and issued a fourth-quarter forecast that was also ahead of Wall Street’s expectations. CEO Alex Karp wrote in the earnings release that the company “absolutely eviscerated this quarter,” driven by demand for artificial intelligence technologies.
U.S. government revenue increased 40% from a year earlier to $320 million, while U.S. commercial revenue rose 54% to $179 million. On the earnings call, the company highlighted a five-year contract to expand its Maven technology across the U.S. military. Palantir established Maven in 2017 to provide AI tools to the Department of Defense.
The post-earnings rally coincides with the period following last week’s presidential election. Palantir is seen as a potential beneficiary given the company’s ties to the Trump camp. Co-founder and Chairman Peter Thiel was a major booster of Donald Trump’s first victorious campaign, though he had a public falling out with Trump in the ensuing years.
When asked in June about his position on the 2024 election, Thiel said, “If you hold a gun to my head I’ll vote for Trump.”
Thiel’s Palantir holdings have increased in value by about $3.2 billion since the earnings report and $2 billion since the election.
In September, S&P Global announced Palantir would join the S&P 500 stock index.
Analysts at Argus Research say the rally has pushed the stock too high given the current financials and growth projections. The analysts still have a long-term buy rating on the stock and said in a report last week that the company had a “stellar” quarter, but they downgraded their 12-month recommendation to a hold.
The stock “may be getting ahead of what the company fundamentals can support,” the analysts wrote.
Charles Liang, chief executive officer of Super Micro Computer Inc., during the Computex conference in Taipei, Taiwan, on Wednesday, June 5, 2024. The trade show runs through June 7.
Annabelle Chih | Bloomberg | Getty Images
Super Micro Computer could be headed down a path to getting kicked off the Nasdaq as soon as Monday.
That’s the potential fate for the server company if it fails to file a viable plan for becoming compliant with Nasdaq regulations. Super Micro is late in filing its 2024 year-end report with the SEC, and has yet to replace its accounting firm. Many investors were expecting clarity from Super Micro when the company reported preliminary quarterly results last week. But they didn’t get it.
The primary component of that plan is how and when Super Micro will file its 2024 year-end report with the Securities and Exchange Commission, and why it was late. That report is something many expected would be filed alongside the company’s June fourth-quarter earnings but was not.
The Nasdaq delisting process represents a crossroads for Super Micro, which has been one of the primary beneficiaries of the artificial intelligence boom due to its longstanding relationship with Nvidia and surging demand for the chipmaker’s graphics processing units.
The one-time AI darling is reeling after a stretch of bad news. After Super Micro failed to file its annual report over the summer, activist short seller Hindenburg Research targeted the company in August, alleging accounting fraud and export control issues. The company’s auditor, Ernst & Young, stepped down in October, and Super Micro said last week that it was still trying to find a new one.
The stock is getting hammered. After the shares soared more than 14-fold from the end of 2022 to their peak in March of this year, they’ve since plummeted by 85%. Super Micro’s stock is now equal to where it was trading in May 2022, after falling another 11% on Thursday.
Getting delisted from the Nasdaq could be next if Super Micro doesn’t file a compliance plan by the Monday deadline or if the exchange rejects the company’s submission. Super Micro could also get an extension from the Nasdaq, giving it months to come into compliance. The company said Thursday that it would provide a plan to the Nasdaq in time.
A spokesperson told CNBC the company “intends to take all necessary steps to achieve compliance with the Nasdaq continued listing requirements as soon as possible.”
While the delisting issue mainly affects the stock, it could also hurt Super Micro’s reputation and standing with its customers, who may prefer to simply avoid the drama and buy AI servers from rivals such as Dell or HPE.
“Given that Super Micro’s accounting concerns have become more acute since Super Micro’s quarter ended, its weakness could ultimately benefit Dell more in the coming quarter,” Bernstein analyst Toni Sacconaghi wrote in a note this week.
A representative for the Nasdaq said the exchange doesn’t comment on the delisting process for individual companies, but the rules suggest the process could take about a year before a final decision.
A plan of compliance
The Nasdaq warned Super Micro on Sept. 17 that it was at risk of being delisted. That gave the company 60 days to submit a plan of compliance to the exchange, and because the deadline falls on a Sunday, the effective date for the submission is Monday.
If Super Micro’s plan is acceptable to Nasdaq staff, the company is eligible for an extension of up to 180 days to file its year-end report. The Nasdaq wants to see if Super Micro’s board of directors has investigated the company’s accounting problem, what the exact reason for the late filing was and a timeline of actions taken by the board.
The Nasdaq says it looks at several factors when evaluating a plan of compliance, including the reasons for the late filing, upcoming corporate events, the overall financial status of the company and the likelihood of a company filing an audited report within 180 days. The review can also look at information provided by outside auditors, the SEC or other regulators.
Last week, Super Micro said it was doing everything it could to remain listed on the Nasdaq, and said a special committee of its board had investigated and found no wrongdoing. Super Micro CEO Charles Liang said the company would receive the board committee’s report as soon as last week. A company spokesperson didn’t respond when asked by CNBC if that report had been received.
If the Nasdaq rejects Super Micro’s compliance plan, the company can request a hearing from the exchange’s Hearings Panel to review the decision. Super Micro won’t be immediately kicked off the exchange – the hearing panel request starts a 15-day stay for delisting, and the panel can decide to extend the deadline for up to 180 days.
If the panel rejects that request or if Super Micro gets an extension and fails to file the updated financials, the company can still appeal the decision to another Nasdaq body called the Listing Council, which can grant an exception.
Ultimately, the Nasdaq says the extensions have a limit: 360 days from when the company’s first late filing was due.
A poor track record
There’s one factor at play that could hurt Super Micro’s chances of an extension. The exchange considers whether the company has any history of being out of compliance with SEC regulations.
Between 2015 and 2017, Super Micro misstated financials and published key filings late, according to the SEC. It was delisted from the Nasdaq in 2017 and was relisted two years later.
Super Micro “might have a more difficult time obtaining extensions as the Nasdaq’s literature indicates it will in part ‘consider the company’s specific circumstances, including the company’s past compliance history’ when determining whether an extension is warranted,” Wedbush analyst Matt Bryson wrote in a note earlier this month. He has a neutral rating on the stock.
History also reveals just how long the delisting process can take.
Charles Liang, chief executive officer of Super Micro Computer Inc., right, and Jensen Huang, co-founder and chief executive officer of Nvidia Corp., during the Computex conference in Taipei, Taiwan, on Wednesday, June 5, 2024.
Annabelle Chih | Bloomberg | Getty Images
Super Micro missed an annual report filing deadline in June 2017, got an extension to December and finally got a hearing in May 2018, which gave it another extension to August of that year. It was only when it missed that deadline that the stock was delisted.
In the short term, the bigger worry for Super Micro is whether customers and suppliers start to bail.
Aside from the compliance problems, Super Micro is a fast-growing company making one of the most in-demand products in the technology industry. Sales more than doubled last year to nearly $15 billion, according to unaudited financial reports, and the company has ample cash on its balance sheet, analysts say. Wall Street is expecting even more growth to about $25 billion in sales in its fiscal 2025, according to FactSet.
Super Micro said last week that the filing delay has “had a bit of an impact to orders.” In its unaudited September quarter results reported last week, the company showed growth that was slower than Wall Street expected. It also provided light guidance.
The company said one reason for its weak results was that it hadn’t yet obtained enough supply of Nvidia’s next-generation chip, called Blackwell, raising questions about Super Micro’s relationship with its most important supplier.
“We don’t believe that Super Micro’s issues are a big deal for Nvidia, although it could move some sales around in the near term from one quarter to the next as customers direct orders toward Dell and others,” wrote Melius Research analyst Ben Reitzes in a note this week.
Super Micro’s head of corporate development, Michael Staiger, told investors on a call last week that “we’ve spoken to Nvidia and they’ve confirmed they’ve made no changes to allocations. We maintain a strong relationship with them.”
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