DC AG Racine says fighting big tech is like David vs. Goliath

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Washington, DC Attorney General Karl Racine speaks after a press conference in front of the US Supreme Court on September 9, 2019, in Washington, DC.

Alex Wong

Attorney General for the District of Columbia Karl Racine sees his office as a kind of underdog in his battles with Big Tech.

“Really, when you take the technology, it’s David versus Goliath,” Racine said in a recent interview with CNBC in his office. “This means you have to be thorough, studied, and precise. And you’re willing to go the distance.”

Racine, who is in his last year in office after announcing, will not be reelectedhas demonstrated its determination in lawsuits against companies such as Amazon, Facebook, Google and Grubhub. Still, his office has seen significant blows in recent months with several different actions against Amazon and Facebook owner Meta.

But Racine said her office plans to move forward in each of these cases and ask the courts to reconsider. He said he wasn’t surprised that tech companies hired the most experienced lawyers to support them and engaged in a process that “crushed small players and litigants.” And, he said, he believes the courts will come out with a little more clarification on the details of their case.

“We’re ready to take on this David role,” Racine said. “And in the end, I think David won.”

The role of government AGs

(LR) Washington, DC Attorney General Karl Racine (L) speaks while listening to Arkansas Attorney General Leslie Rutledge and Texas Attorney General Ken Paxton at a press conference in front of the US Supreme Court on September 9, 2019, in Washington, DC.

Alex Wong

As the first independently elected attorney general in DC, Racine sees the role of state AGs as an especially important one in light of Congress’ ability to act slowly.

When she was first elected in 2014, she didn’t expect taking on the tech industry to be as big of a pillar as her job was. But he quickly realized that his office was in a unique position for the job.

“We knew state AG, including our office, had a role to play, because we were well aware of the paralysis and increased concentration of power in Congress,” said Racine, who also recently served as president of the National Association of Attorneys General. .

Congress is currently Here is a list of competitive bills for the tech industry that could pose serious challenges to the business models of such companies. But disagreement over the finer points of the bills, lobbying by Big Tech companies, and other congressional priorities, including Russia’s war in Ukraine, have prevented the legislation from becoming law yet.

Racine said state attorneys general “have the means to act in a way that gives companies the opportunity to fix problems immediately.” “Or we can take matters to court where no lobbying etc. can prevent the court’s responsibility to decide whether the law has been broken. I think that’s why AGs are active. It’s public and we have the necessary enforcement tools to hold a company accountable.”

While Congress saw its technical efforts stalled by both partisan and cross-party strife, state AGs demonstrated widespread compliance in major tech issues and lawsuits, such as antitrust lawsuits against Facebook and Google, which attracted the vast majority of government practitioners.

Racine attributed compliance to her closeness with the constituencies of attorney general’s offices.

“State attorneys general are the people’s lawyers,” he said. “And in acting as the people’s advocate, they do their best. And they do their best with candor, by engaging with and listening to residents in their jurisdiction.”

While writing new laws is a slow process, Racine acknowledged that litigation is a process, too. But he said deterrence could be an important and more immediate consequence of the state AG’s work.

“Giving companies the opportunity to do the right thing, that is, to look carefully at what might happen in a case, to determine if it is truly wrong, and to bring their behavior into line with the law, the whole process is a process that is often not seen in public, but is also underestimated,” he said.

Racine has a few wins against the tech industry. pointed letter In the days after the January 6 uprising at the US Capitol, he and several other state AGs posted a message to Facebook, urging the platform to remove targeted advertising of military tactical gear and weapon accessories until after inauguration. One day later Facebook complied.

In some cases, where Racine’s office went so far as to sue tech companies, she reached a settlement that resulted in compensation for the residents of the affected District.

DoorDash, for example, agreed to a $2.5 million deal in 2020 over allegations that it misled consumers about how it would distribute gratuities to workers. This deal comes just weeks after the company went public. Of that total, $1.5 million is set to be paid to delivery workers, $750,000 to the District, and $250,000 to help two local charities.

More recently, Racine’s office sued Grubhuballeged that the company used misleading marketing tactics, including deceiving consumers about how their shopping would benefit small restaurants during the pandemic. Grubhub denied violating District law and vowed to defend its practices.

Litigation glitches

The DC office of the Attorney General has seen some setbacks in some major tech lawsuits recently.

First, last summer, a federal judge filed a multi-state lawsuit against Facebook for alleged illegal monopoly. Then, earlier this month, a District judge dismissed Racine’s request to add Meta CEO Mark Zuckerberg as a defendant in a consumer protection lawsuit stemming from the Cambridge Analytica scandal. Shortly after that, another judge dismissed Racine’s lawsuit against Amazon, which is thought to be the first government antitrust lawsuit against the company.

Despite a series of crackdowns, Racine said she still trusts the courts.

“I think it’s really important for us to stand up for the clear facts and then really educate the court on the law,” he said.

Part of this may be the function of bringing more cases under existing statutes.

“To be honest with you, there haven’t been many antitrust cases in the District of Columbia,” Racine said. His lawsuit against Amazon, for example, was subject to the Territory’s antitrust law. “And so in a real sense, courts are now hearing these cases for the first time. And I think it will take some learning to familiarize the court with legal principles that it doesn’t interact with on a regular basis.”

His office plans to ask the court to reconsider its case against Amazon. Racine, a Federal judge in Seattle allowed similar claims to progress A few days before the district court’s decision to the contrary.

Amazon did not leave a comment.

A coalition of states trying to sue Facebook on antitrust grounds is contesting a federal judge’s dismissal of the lawsuit. The judge in this case argued that states took an unusually long time to bring charges after Facebook bought Instagram and WhatsApp years ago. Under federal antitrust law, both federal and state enforcers have the power to file lawsuits under statute and reserve the right to appeal mergers long after they’ve been closed.

In the case involving Cambridge Analytica, a separate judge similarly said the AG office waited too long to add Zuckerberg’s name to the complaint. District of Columbia Superior Court Judge Maurice Ross criticized AG’s office for waiting so long to name Zuckerberg, saying that most of the information needed for this is already available. He questioned the value for consumers of putting the CEO on the case, too.

“The submission of the subsequent motion to reopen exploration less than three months after agreeing on a final program for exploration is almost malicious,” the judge said, according to a court transcript of the hearing. “And on timing, there’s no bias against DC because the relief they can get is the same. All it does is divert attention from the company to an individual.”

But Racine argued that his office needed to gather more evidence from the company before the CEO could prove strongly that he should be held accountable for alleged violations of consumer protection laws. He said Facebook’s slow pace in evidence disclosure contributed to the time it took his office to determine it had the information to show that conclusion.

Facebook did not comment.

“We are now considering filing a separate lawsuit against Mark Zuckerberg, which is highly compliant with the statute of limitations, because we think the evidence shows that Mr. Zuckerberg was closely involved in misrepresentations to protect user privacy,” Racine said.

At the federal level, he said it makes sense for Congress to try to update federal antitrust law to clarify the ways in which the tech industry is subject to these statutes.

“Congress now has the facts to perhaps better tailor antitrust action causes and remedies to what we actually see on the internet,” he said.

what’s next

Racine said her decision not to run for reelection was a “highly personal” decision, adding that she now has a son to take care of. He wouldn’t rule out another post in government, but said there’s no where “his first look” isn’t right now.

He said that as a Haitian-American, he would be particularly interested in opportunities that allow him to help with problems in Haiti. She said she’s also exploring other options, including the private sector.

Racine said he hopes his successor will “continue to stand up for DC residents, including many of us using technology.” he is approved Brian Schwalb is the managing partner of the DC office of the law firm Venable. Prior to Racine, AG, he worked at the firm with Schwalb.

“It’s important for us to be a check and balance point on how technology interacts with our lives, treating people both fairly and unfairly, and forcing the law to become a better corporate citizen by using hate, misinformation and disinformation,” Racine said. This has always been the role of the Ombudsperson, and I sincerely hope and believe that the next attorney general will continue this fight.”

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