Paul, Weiss, Rifkind, Wharton & Garrison offices in Washington, D.C. Credit: Mike Scarcella / ALM

In preparation for a momentous and rare joint appearance before Congress, four titans of the tech industry turned to prominent lawyers in Washington for counsel to prepare for a hearing that will unfold against the backdrop of investigations by federal law enforcement agencies.

The chief executives of Amazon, Apple, Facebook and Google are set to appear Wednesday before a U.S. House of Representatives panel for a hearing that will mark the culmination of a 13-month congressional investigation of antitrust issues involving the tech sector.

Lawmakers have collected more than 1 million documents and conducted interviews for hundreds of hours, investigating the tech giants on accusations that they have unfairly flexed their market might to suppress smaller competitors.

For Jeff Bezos, the founder and CEO of Amazon, the virtual hearing before the House subcommittee will mark his first appearance before Congress. Bezos has been counseled ahead of the hearing by Paul, Weiss, Rifkind, Wharton & Garrison partner Karen Dunn—newly arrived from Boies Schiller Flexner—and Covington & Burling partner Robert Kelner, the head of the firm's political law practice. Amazon general counsel David Zapolsky and Jay Carney, the company's top spokesman and former Obama White House press secretary, have spearheaded preparations for Bezos' debut hearing.

Apple CEO Tim Cook has been advised by Jenner & Block partners Tom Perrelli, who served as the third-ranking Justice Department official in the Obama administration, and Emily Loeb, co-chair of the firm's government controversies and public policy litigation practice. The company's director of federal government affairs, Tim Powderly, and Apple's vice president of environment, policy and social initiatives, Lisa Jackson, have led Cook's preparation.

Alicia O'Brien, a King & Spalding partner and former Justice Department official, has advised Google CEO Sundar Pichai alongside the search giant's general counsel, Kent Walker, and policy chief, Karan Bhatia.

A team at Wilmer Cutler Pickering Hale and Dorr, including partners Reginald Brown and Jon Yarowsky, have prepared Facebook CEO Mark Zuckerberg. The firm has worked with Facebook's general counsel, Jennifer Newstead, and the company's vice president of U.S. public policy, Joel Kaplan, who served as former President George W. Bush's deputy chief of staff in the final years of his administration.

Wilmer Cutler Pickering Hale and Dorr offices in Washington, D.C. (Photo: Diego M. Radzinschi / NLJ)

In their prep, the lawyers and executives have been forced to adapt to a virtual format that will—perhaps fittingly—rely on a sound internet connection. That format is expected to favor the executives, sapping the spectacle of the hearing and making it more difficult for lawmakers to produce the kinds of gotcha moments that can go viral.

On the teleconference, the executives will be enlarged on the screen only when they speak, making it more difficult for lawmakers to gather a sense of the business leaders' body language in the course of the hearing. The dynamic could force lawmakers to focus their questioning on a single executive rather than pressing the entire panel or asking for a show of hands.

"The adage is, when you're being chased by the bear, you just have to run faster than the next guy. That's doubly true in this format. If they focus on one or two, the rewards for the other CEOs are outsized," said one veteran congressional investigations lawyer.

Still, the hearing presents significant risks for the four executives, who are all seen as likely to be questioned in ongoing investigations by government agencies. Their testimony will be pored over, and any missteps could create complications in those separate investigations.

House Republicans plan to press the executives about perceived bias against conservatives on their platforms, along with any steps companies plan to take to "ensure such bias does not crop up as the country heads toward a contentious election season," according to a memo obtained by The National Law Journal.

The guidance also urges GOP lawmakers to argue that it is unnecessary for Congress to duplicate investigations by the U.S. Justice Department and Federal Trade Commission.

The memo notes that a Justice Department action against Google over its search and advertising practices "appears imminent." It also acknowledges the department's investigation into Apple over the company's management of the App Store.

Meanwhile, the FTC is investigating Amazon with a focus on how the retail giant competes with third-party sellers who use its platform. A separate investigation into Facebook is addressing whether the social media company acquired rivals, such as Instagram and WhatsApp, to head off competitive threats.

The FTC has asked Facebook, Google, Apple and Amazon to provide the agency with information about prior acquisitions that were not previously reported.

"While the committee's Big Tech investigation and this hearing may prove instructive generally—and provide fodder for those with a chip on their shoulders against capitalism—it is important to remember that the Trump Administration is already enforcing the antitrust laws that Congress has given it to administer, and is examining Google, Amazon, Apple, and Facebook," the memo states.

 

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