A conversation with Ashley Keller, founding partner of Keller Postman, on the Organized
Money podcast with hosts David Dayen (The American Prospect) and Matt Stoller (BIG /
American Economic Liberties Project).
Editor’s Note:
In the spring of 2026, Ashley Keller, co-founder of Keller Postman LLC and lead counsel on the
advertiser arbitrations against Google, sat down with David Dayen and Matt Stoller on the
Organized Money podcast, which can be found at www.organizedmoney.fm. The conversation
ranged well beyond the Google Ads case.
We are republishing the transcript here because it captures, in plain language, the case for a
more muscular plaintiff’s bar from a conservative who has actually built one. Keller is a former
clerk to Justice Anthony Kennedy and Judge Richard Posner, a founder of the modern
litigation-finance industry, and the lawyer who broke Amazon’s mandatory-arbitration clause by
taking it at face value. He calls himself a textualist and an originalist. He also thinks Citizens
United probably should not apply to multinational corporations, that Google should be made to
pay tens of billions to advertisers, and that monopoly power today is a greater threat to
individual freedom than government power.
For anyone trying to understand where the conservative legal movement is splitting on
corporate power, this conversation is worth reading in full. The substance is unchanged.
Cold Open
David Dayen: If you followed this show for the last year, we’ve been a little bummed out,
because this is a show about fighting corporate power, and the federal government has stopped.
The FCC approved Skydance Media’s $8 billion bid to acquire CBS News parent company
Paramount. Live Nation has reached a surprise settlement in its antitrust case with the Justice
Department, successfully allowing the concert giant to avoid a breakup. And while the takeover
of Warner Brothers Discovery by Paramount Skydance still must receive federal regulatory approval, it appears that will not be difficult, in large measure due to the relationship between President Trump and Paramount CEO David Ellison and his father.
David Dayen: There’s this general sense that conservatives have made a decision writ large, at
least through the Trump administration, that they are going to take the side of big business. But
that assumes everybody on that side of the aisle is a monolith, that they’re all just sort of lining
up in this direction. It’s not exactly true.
Matt Stoller: There are some —
David Dayen: No, it’s true. This is, the episode is over. The episode, thank you. Thanks for
joining us.
Matt Stoller: No, there’s been a bunch of Republican state attorneys general who just joined
the opposition to the Nexstar merger. And there were Republican states against Ticketmaster.
There is a bubbling undercurrent of antagonism towards corporate power. And you can sort of
see this at the Supreme Court too. Behind it is not just politics, there’s a deep, deep intellectual
set of disagreements on the right, which most Democrats, and I call myself one of them, don’t
really pay that much attention to. We pay attention to the splits within our own party. There’s a
corporate wing of the Democratic Party and there’s a more populist wing. And that’s true on the
right as well. It doesn’t necessarily bubble up to the surface all the time, but at lower levels that
fight goes on.
Matt Stoller: We have someone at the heart of that fight today. Ashley Keller is a conservative
lawyer, and he first came to my attention in 2021 when he was the keynote debater at the most
important conservative legal conference in America, which is the National Lawyers Convention
of the Federalist Society. What was interesting about him is that he took the pro side of the
debate topic: “Concentrated corporate power is a greater threat to individual freedom than
government power.” That is not something you expect to hear from a conservative.
David Dayen: Not something that I thought I’d hear.
Ashley Keller (clip from 2021 Federalist Society debate): “Defenders of freedom must face reality. The Chamber of Commerce is not our friend. The C-suite grandees who finance it are not our friends either. They were erstwhile allies of convenience, and they are now the
enemies of a freedom-loving people.”
David Dayen: Yeah. And another idiosyncratic thing about him is that he’s actually a plaintiff’s
lawyer.
Matt Stoller: I’ve seen ads by conservatives saying the trial lawyers are what’s wrong with
America, but here it is —
David Dayen: Ambulance chasing wheelchairs.
Matt Stoller: Exactly. He sues big companies. He helped found this practice called litigation
finance, which is how a lot of these kinds of lawsuits are organized now. And he’s worked against
something very pernicious called arbitration clauses in contracts. He’s won antitrust verdicts
against Google. He’s got important cases through the Supreme Court. Just recently, he argued in
front of the Court in a case against Monsanto, which is now owned by Bayer, over them trying to
strip liability for cancer-causing agents in their products.
Matt Stoller: He is a quality troll. If you want some good legal trolling of big business, we’ve
done some of that, I think, in an episode on video gaming, but Ashley is the OG troll of big
business. And I mean that in a complimentary way. He is the founding partner at Keller
Postman. He was a clerk for Justice Kennedy at the Supreme Court and Richard Posner at the
U.S. Court of Appeals for the Seventh Circuit. So with that, let’s get to it.
Cold Open
David Dayen: Organized Money. I’m David Dayen. I run The American Prospect magazine.
Matt Stoller: And I’m Matt Stoller. I write about monopolies in a newsletter called BIG. And
I’m the research director for a think tank called the American Economic Liberties Project.
David Dayen: On Organized Money, we go beyond supply and demand curves and odes to
visionary entrepreneurs and tell you how the business world really works. We’ll talk to business
leaders, journalists, policymakers, people on the front lines who are dealing with monopoly
power, competing with it, winning, losing, but ultimately fighting back. It’s a podcast about all
the money and power in the world. And we know now that government by organized money is
just as dangerous as government by organized mob.
A Conservative Plaintiff’s Lawyer
Matt Stoller: Ashley, thanks so much for coming on Organized Money.
Ashley Keller: Great to be with you.
Matt Stoller: Let’s get right into it. You litigate against big companies using a whole bunch of
really interesting legal tactics. You’re also a well-known conservative thinker and advocate, a
lawyer, a super lawyer, even. This is an unusual combination. So give us your background. What’s your journey to where you are today?
Ashley Keller: I don’t actually think there is the cognitive dissonance that’s maybe implied by
your question. I’ve always been a conservative, and proudly so. And great conservatives like
Milton Friedman always said that the tort system is the best way to ensure that companies
behave and follow the rules. There’s a long pedigree of conservative economic lines of thought
that suggest that plaintiffs’ lawyers are the solution to the problem, as opposed to having
government regulation and the alphabet soup of Washington, D.C. agencies try to police these
companies. I’m not subject to agency capture. I can’t be bought by Google and Meta. I zealously
represent my clients, and I think I’m doing the Lord’s good work from a conservative
perspective.
David Dayen: I’m really excited for this conversation. I want to ask you a question that I think
you will have heard before, but our listeners have not heard you answer it. And it is this: is
concentrated corporate power a greater threat to individual freedom than government power?
Ashley Keller: It depends on where we are in history. But today, I think the answer is yes. Not
that I have turned a blind eye to government power and the threat that that poses. But when you
look at the number of trillion-dollar companies and the power that they wield, and now we’re
going to be talking about an AI world, and the sorts of people who are shaping the policies and
procedures to put up guardrails and to protect the public, yeah, I’m very concerned about
concentrated corporate power. I think we need a much more muscular antitrust policy, just like
we did when the Sherman Antitrust Act was first put into the statute book.
The Google Ad Tech Arbitrations
Matt Stoller: Let’s talk about one of the cases you’re working on right now. I think it’s going to
take a little explanation. Your firm is filing thousands of private arbitration claims against
Google on antitrust grounds. We’ve talked about Google a lot on this show, it was our first
episode, but we haven’t touched this side of things, particularly around advertising. What did
Google do here, and what are the grounds that you’re filing these cases on?
Ashley Keller: Sure. Fortunately, you don’t have to take my word for it. Two different federal
judges have adjudicated Google a monopolist twice over. They’re a monopolist in search, and
they’re a monopolist in the ad tech stack. That ad tech case was actually pioneered by Attorney
General Paxton down in Texas, and we had the privilege of working with the state of Texas as
well as many other states in pursuing that. As a result of just the procedural niceties of how the
system works with MDLs, we got swept up in the MDL.
Matt Stoller: And an MDL is multi-district litigation, right?
Ashley Keller: That is correct. The Texas cases, with all of those other sovereign states, got
sent to New York, and we were on a slower path, which is not at all the fault of the New York
federal judge. It’s just when you’re dealing with an MDL, you can’t go as quickly. And the
Department of Justice, the Biden administration, copied our good work. So credit to them for
seeing that it was a really good case.
Matt Stoller: Great artists steal.
Ashley Keller: Yeah, no doubt about it, as Steve Jobs would happily tell everybody. So we got
leapfrogged. Judge Brinkema has now issued a liability finding, and we’re waiting on her
remedies finding, that Google is in fact a monopolist. We were quite familiar with that case since
we were involved from inception with Texas and others in pursuing it. And then you obviously
have the search decision as well.
Ashley Keller: Google has its appeal rights. Of course they’re going to take those appeals to the
D.C. Circuit, and eventually to the Fourth Circuit when Judge Brinkema issues her liability and
remedies decision and they both become final. But we sort of know from very detailed findings
from two very well-respected judges who heard a lot of evidence and testimony that Google is a
monopolist.
Matt Stoller: What did they actually do, to advertisers?
Ashley Keller: Well, to put it very simply, they do what monopolists always do. They charge a
supracompetitive price. And they hurt the publisher side of the equation too, because they have
all of the ad tech technology. This starts with the acquisition of DoubleClick. There’s the ad
exchange that Google runs. There’s the tools for publishers and advertisers. They’re on all sides
of the transaction. They’re obviously keeping all sorts of data. These are auctions that are
happening in a fraction of a second, trillions of times a day. So it’s easier to manipulate than
your Sotheby’s or Christie’s auction might be with open outcry.
Matt Stoller: Right, so an auction for like a banner ad. I’m an advertiser, I put some money
into Google’s system, and they’re buying banner ads, and they own all the plumbing that gets
that dollar from my bank account all the way to the advertisement. And then they are
presumably overcharging the advertiser and not giving a lot to the publisher. So that’s the gist of
it. Is that fair?
Ashley Keller: That’s very fair. If you’re, you know, the Daily Mail, and you have a certain
number of users coming to you every day, you’re the publisher. Google runs your website to
make sure that your ads are being properly placed and supposedly maximizing the price for you.
There’s an auction system, and there’s an exchange that Google owns that has monopoly power.
And if you’re the advertiser, Google also owns the tools that you use to try to submit your bids to
get the eyeballs on the Daily Mail website, and everything in between. As you say, they own the plumbing. And of course they are doing everything to maximize their own profits, minimize the share that goes to the publisher, and wring every penny out of the advertiser. That’s the theory
of anticompetitive harm.
Matt Stoller: How much money are we talking here?
Ashley Keller: A quarter of a trillion dollars over the relevant lookback period. So a very
substantial chunk of change, even for a company as big as Google. That is an estimate of
potential damages in the arbitrations that we’re bringing.
Matt Stoller: Tell us how, OK, presumably there are some listeners here who have done
advertising. Can they get money from this?
Ashley Keller: 100 percent. The problem that most of these businesses have, and our clients
range from small mom-and-pop businesses who do a couple thousand bucks in advertising to
reach a local community, to very large consumer products companies that have spent nine
figures with Google over the relevant periods of time, and everybody in between, so it’s small
businesses, medium-sized businesses, large businesses. You have these liability findings from
these federal judges and they’re very detailed and thorough. But Google has done what a lot of
big companies have done to consumers and to their business clients: they’ve imposed arbitration
agreements on them and said, “If you want to have any dispute resolved with us about our
relationship, you’ve got to go to arbitration.”
Ashley Keller: So they effectively have killed off the possibility of a class action solution to the
problem. There’s actually a decision from the MDL judge essentially saying that there’s this
arbitration agreement, it can’t be done on a class-wide basis. So the only way that you’re going to
be able to get the money you are entitled to from Google’s monopoly overcharges is if you go
through the arbitration process. And my firm has specialized, pioneered, a practice of doing
what we call mass arbitration.
Ashley Keller: The start of this business was really the consumer side, not businesses. It was
Uber drivers and DoorDash drivers, gig economy drivers who were not paid a minimum wage
because these companies treated them as so-called independent contractors when, for example,
California law said they had to be treated as employees. Or deceptive trade practices violations
where a company would bury in its terms of service something deceptive and you’d be entitled to
a couple hundred dollars in compensation. Well, no individual is going to bring a lawsuit for a
couple hundred dollars in compensation. But if you work with tens of thousands or hundreds of
thousands of other people who are bringing the same claims, you can pressure these companies
to eventually do the right thing and compensate you for your losses, and achieve some of the
things that class actions are designed to achieve. And we’re just doing that now on behalf of
businesses, because Google has harmed a lot of businesses as a result of their monopoly
overcharges.
David Dayen: Wow. Well, as a publisher of a magazine, The American Prospect, I’m taking
notice of this. We actually ended all of our programmatic ads at the beginning of April because it
just wasn’t worth it to us, not just financially but morally. But also financially, there was just not
a lot of money coming in.
Matt Stoller: Dave, you just want to know you’re a good person.
David Dayen: Thank you. You’re a good human being.
Matt Stoller: I think it’s important. The halo, you can actually see over my head.
David Dayen: But the point of this, the arbitration thing is interesting. I just want to clarify
one point. Judge Brinkema is doing a remedy on Google being a monopolist in advertising
technology. Is the expectation that monetary damages will not be the primary focus of that
remedy, that it’ll be some sort of structural change going forward, but it won’t compensate
anybody for the past?
Ashley Keller: Not only that, part of the reason this was a bench trial, not a jury trial, is
because all of the monetary damages were disclaimed. The United States is basically only
seeking equitable relief. So there will not be money changing hands other than perhaps attorney
fee shifting. The only relief she can award is equitable.
Matt Stoller: Oh yeah, I remember this. Jonathan Kanter tried to get a jury, and then Google
literally wrote a check. He was like, “Oh, the government got screwed out of money because
they’re advertisers.” So Google wrote a check for all the potential damages, and Brinkema said,
“Yeah, you don’t get a jury trial.”
Ashley Keller: I’m not sure that she was wrong about that. Once Google satisfied the monetary
claims, all you’re seeking is equitable, and it’s tough to say that you have a Seventh Amendment
right then.
How Arbitration Killed Class Actions
David Dayen: That’s a larger point, though. We’ve gotten to this point in America where all
this legal work is shielded behind these arbitration agreements. Maybe walk us through the legal
development of that. I know there’s a law called the Federal Arbitration Act, and there were
some rulings that allowed these to apply in employment cases or business cases. Could you talk
about that?
Ashley Keller: The Federal Arbitration Act is very old. It’s more than a century old. Not to get
you into too much legal nerdy history —
Matt Stoller: No, we invited you on because we want the nerd. Give us the originalist
textualist, let us have it.
Ashley Keller: You definitely have the right guest if you’re looking for a nerd. So this was in
the Swift v. Tyson era, not in the Erie era. For those of your listeners who are not necessarily
familiar with that distinction, there used to be a thing called general law, and judges were
supposed to be discovering law based on general principles applicable to the English-speaking
world. When the Federal Arbitration Act was passed, we were firmly in that era, and everybody
in Congress thought that it was just procedural, so it would only apply in federal court. And
Justice Thomas, to his great credit, is on record saying, “I’m not going to apply the Federal
Arbitration Act for things that come out of the state court system. I’m only going to apply it in
federal court.”
Ashley Keller: Over time, we switched over to the Erie era, and the Federal Arbitration Act
was thought to be substantive in both state and federal court. Then in the ’90s and 2000s, there
were a series of decisions that effectively gave the Federal Arbitration Act a lot more oomph for
corporations. What companies decided to do in the 2000s in the wake of these favorable
Supreme Court decisions, and then moving forward into the 2010s, the Chamber got hold of
draft arbitration agreements, and they said, “Look, let’s just kill class actions. Your real problem,
big companies, are class actions. You commit these faults, these harms that might be small for
any individual but, aggregated over your 10 million or 20 million customers, they’re really big.
Let’s write these arbitration agreements in a way that’s really favorable to consumers,” with
window dressing like, “We’ll pay all of your arbitration fees. We’ll make sure it’s fast and
expeditious. You don’t owe your share of fees. We’ll cover all of the arbitration costs as long as
the amount in controversy is lower than something very, very large.”
Ashley Keller: So it looks to the Supreme Court like, this is so great for the consumer, how
could anybody turn this down? And in practice, no one will actually bring these claims against
you, and you will have killed off class action liability. The class action lawyers will file their suits,
you’ll move to compel arbitration and you’ll win. Liability will be off the table. It won’t just be an
alternative dispute resolution forum, it will be no dispute resolution forum, because no one’s
going to really arbitrate. And that worked for more than a decade. Basically class actions were
dead.
Matt Stoller: It worked until you came along. Wait, so let me get to: is that why, I think we’ve
seen the rise of junk fees and a lot of ticky-tack bullshit that we have to deal with in our everyday
life. Would you trace that to this expansion of arbitration?
Ashley Keller: Yes. The inability to go police that stuff in the class action device through Rule
23 or state law equivalents, I think, is a significant contributor to why you see those ticky-tack
things. Because to quote my old boss, Dick Posner, only a lunatic or a fanatic sues for $20. You’re not going to bring a lawsuit for $20. Whereas if you could multiply it by 10 or 20 million people, then you would bring that lawsuit. The incentives are there.
Plaintiff’s Lawyers as “Vultures”
Matt Stoller: There’s a metaphor that I’m going to bring, which is going to sound rude, but
whatever, which is that there’s this perception, certainly on the right, but some people on the left
too, that plaintiff’s lawyers are sort of vulture types. And there’s actually some merit to that,
because vultures look aggressive and whatnot. But when you actually get rid of vultures out of an
ecosystem, all sorts of things go haywire because vultures actually play a really important, this is
a bad metaphor, but there’s an element here, and I feel really strongly about this.
Matt Stoller: When I look at the decline of plaintiff’s law, the systematic attack on plaintiff’s
lawyers, on the left, you’ve seen this rise of, “Well, we have to get the government to do it.” And
on the right, you have this, “Well, we just can’t go after big business.” It has really taken America
and made it off-kilter. It is like an ecosystem where you’ve pulled out a vital ingredient.
Ashley Keller: I never thought that I would embrace being referred to as a vulture, but you
said it in such a nice way I guess I can handle the metaphor. Look, I’m not a total white hat. I’m
not a white hat / black hat kind of guy. Defendants deserve to win sometimes. Corporations
sometimes don’t misbehave and they’re sued anyway by an unscrupulous or aggressive
plaintiff’s lawyer. Each case should be decided on its own merits.
Ashley Keller: But I definitely agree with you that when you systematically try to disadvantage
the plaintiff side, there are going to be negative spillover consequences, because corporations
misbehave all the time. They are not these white knights who are always out there behaving
perfectly the way your granddad’s Republican Party thought that they should and the free
market is the only thing needed to police them. They misbehave. They break the rules. They
capture agencies.
Matt Stoller: But that’s the right-wing argument. I’m actually noting there’s a left-wing
problem too, because one of the things that’s happened on the Democratic side, and I’m
speaking about my own sort of world, is they assume, OK, the regulator, the person that’s going
to regulate this misbehavior, is the government, some alphabet agency. I’ve dealt with enough of
them that I respect that ability and that power. But the truth is, it’s nothing compared to actually
the guy with the face on the billboard who’s like, “I will fight for you.” That’s the guy that scares
the companies into not violating the law.
David Dayen: I think liberal groups, particularly liberal legal groups, talk about private
attorneys general a lot. They talk about the need to supplement what can be done at the governmental law enforcement level with limited budgets. But I think what’s interesting here is,
Ashley, that you’re really talking about a structural problem, a structural barrier. And you found
a way around it. One of the examples of this that you did just to show that it actually can work is
what happened with Amazon, which was one of the highest-quality trolling examples of all time.
Amazon, we’re calling you a vulture and a troll, and these are all compliments —
Matt Stoller: They are all compliments.
David Dayen: Amazon completely removed mandatory arbitration and class action waivers
from its online terms of service. And that was in large part because of the work you did. Tell us
about that transformation.
Ashley Keller: I think companies have kind of let their mask down. They’re almost admitting,
Amazon’s decision to drop its arbitration clause after we hit them with tens of thousands of
arbitrations and they were facing a nine-figure fee from the arbitral bodies. I think they’re
basically confessing that the narrative I told you before is right. They put these arbitration
agreements in not because they really wanted to arbitrate with individual consumers, but
because they wanted to use it as a liability shield. When we called their bluff and they couldn’t
use it as a shield anymore, they said, “Ah, screw it. Let’s just go back to class actions. We’re not
going to go pay these arbitral bodies nine figures.”
Matt Stoller: Like, they have to pay for the arbitration initially. Is that why it became a
liability?
Ashley Keller: Of course. Their agreements said they would pay the arbitral fees for the
consumers. At the time, these arbitral bodies would charge a couple thousand dollars per
arbitration. And thanks to it not being a class, it has to be individual arbitration, so you have to
pay the fee every time. They came back and said, “You know, we’re dirty shakedown artists,
we’re just trying to extract the fees.” And I said, “I’m not a shakedown artist. I’m just honoring
your contract. You wrote it. So how about you live by it?”
Matt Stoller: So great. Sanctity of contracts.
David Dayen: So Ashley, how can people reach you if they want to be part of getting some
money from Google?
Ashley Keller: For sure. My email is public and on the website kellerpostman.com, K-E-L-L-
E-R-P-O-S-T-M-A-N-dot-com. Send me an email directly. I’d love to consult with you.
Monsanto v. Durnell at the Supreme Court
Matt Stoller: I’m very impressed by your work. You’ve done a lot of really cool things, and you
kind of do something interesting, complete it, and go on to the next thing. I think you played a
big role in creating litigation financing, which is now foundational to how plaintiff’s law works.
But last week you argued a case at the Supreme Court over Bayer-Monsanto, whether they’re
liable for not warning people that their products cause cancer. So it’s this big MAHA thing.
Chief Justice Roberts (clip from oral argument): “We’ll hear argument next in case 24-
1068, Monsanto Company v. Durnell. Mr. Keller?”
Ashley Keller (clip from oral argument): “Mr. Chief Justice, and may it please the Court. You unanimously held in Bates that a pesticide can be registered and nevertheless misbranded,
even if it uses the label that EPA approved at registration. Yet Monsanto now asks you for…”
Matt Stoller: …a window into how the broader discourse around corporate power is playing
out on the right. Why don’t you start by just telling us what this case was about and how it was to
argue it in front of the Supreme Court?
Ashley Keller: Sure. Conservative legend Jonathan Mitchell was on my side, and we had
Texas, Florida and Ohio on my side. This is definitely an issue that divides the conservative
movement right along the fault lines that we’ve been talking about, kind of like the old-school
Chamber of Commerce Republicans versus the new-school MAHA types, where I firmly put
myself, and I think a lot of other conservatives.
Ashley Keller: The issue in Monsanto v. Durnell is a statute called FIFRA, the Federal
Insecticide, Fungicide, and Rodenticide Act, which has an express preemption clause that says,
essentially, states can’t have any labeling requirements that are in addition to or different from
federal law. Most states have common law labeling requirements that match federal law’s
misbranding standard, which essentially says you can’t have a label that’s false or misleading or
that doesn’t include necessary warnings to protect the consumer. The argument of the plaintiffs
is always: “We are mirroring federal law. We’re not in addition to or different from federal law.”
In fact, the federal definitions of what you’re supposed to do on your label were borrowed from
state common law. That’s where the misbranding definitions that Congress enacted came from.
Ashley Keller: The other side’s argument is essentially, “Well, if the EPA, in this case the
Environmental Protection Agency, looks at the label and determines that it’s safe based on its
review of the science, that locks into place at a more specific level of generality whether the
misbranding standard is violated.” And our response, to quote The Big Lebowski, “Well, that’s
just like your opinion, man.” The EPA is not God. It doesn’t get to say what the law is. It gets to
express its opinion. That opinion matters wherever Congress says it matters. But Congress
didn’t say that it blocks a plaintiff like Mr. Durnell from disagreeing with the EPA and
presenting scientific evidence to a jury.
Ashley Keller: So it’s really about where the power lies. Do you trust the agency to be the
ultimate arbiter of what is true or not? Or do you trust 12 regular citizens to get to make that
decision, in keeping with our Seventh Amendment tradition? I feel very comfortable that the
conservative argument is actually the one that I was making. You know my politics, I’m a three-
time Trump voter, I deeply respect a lot of the people in this administration. Sarah Harris, who
argued for the United States, is a terrific advocate and a friend, and she did a great job. But I
think the government is wrong on this one. They should not have been backing the herbicide
manufacturer and taking a stand against the 100,000-plus plaintiffs who have very strong
claims that they were given non-Hodgkin’s lymphoma because of glyphosate exposure.
The Trump Administration on Antitrust
Matt Stoller: Let me push you on this about Trump a little bit. In the first Trump term, he
brought the case against Google. He brought the case against Facebook. His Justice Department
and FTC, AT&T-Time Warner was a merger challenge in the first term. They started doing some
things on labor monopsony. And this time, I gotta say, it seems like the opposite kind of
direction is what’s happening. Lina Khan and Jonathan Kanter in the Biden administration were
pretty aggressive. The Trump administration is settling a lot of those cases. The worst
interpretation is they’re basically selling antitrust claims to the highest bidder, that merger
challenges are getting through because of million-dollar payments. There haven’t been a bunch
of meaningful cases. What is your view, as someone who supports this administration, of what
happened?
Ashley Keller: I’m not on the inside, so I can’t tell you all those details. For as long as
Washington, D.C. has been a place, certainly in my lifetime, and even in my parents’ and
grandparents’ lifetime, there have been lobbyists, and they’ve tried to influence, and they’ve had
significant levels of success. I don’t know if this administration should be really judged as any
worse than prior administrations.
Ashley Keller: I will share, though, your disappointment that certain things have been allowed
in the antitrust realm. I will highlight, and this is a shameless plug because I’m class counsel on
behalf of plaintiffs for the certified Live Nation class, I don’t understand what the Department of
Justice was doing. They’re dropping a winning case in the middle of trial, only to let the states
claim the glory and now have full control over what happens. Where 90 percent of the public is
probably on the side of the plaintiffs. Who in their right mind, other than shareholders of Live
Nation, likes Live Nation? You couldn’t have a more opportunistic target where the merits and
the politics lined up perfectly. And we just botched it and gave away the store on the five-yard
line. I don’t understand that choice.
Ashley Keller: Obviously, I wasn’t in the room. I don’t know why the Department negotiated
the deal that it did. I’m not casting any aspersions on the hardworking professionals in the
antitrust division. But it seems, from the public reporting, that the attorneys arguing the case for
the United States didn’t even know that there was a settlement until they walked into the
courtroom. Like, what in the hell is going on there? So yeah, I have questions about what the
Department did there, and you could probably point to some other examples. But this is why
you need the private plaintiffs’ bar, to Matt’s earlier point. Agencies can get captured, they can
get distracted, they can have all sorts of things that go wrong. You cannot just trust the
regulators to regulate. You need the incentives of the private sector to ensure that the consumer
is properly protected.
Settlements, Fees, and Judicial Scrutiny
Matt Stoller: Let me push you on that for a second. First of all, maybe they were just trying to
be nice to the state enforcers, like, “Here’s a winning case, sure, there you go, feel good about
yourselves, you guys get the credit.” That would be great.
Ashley Keller: Yeah, sure.
Matt Stoller: So one thing that I think is a legitimate criticism of the plaintiff’s bar is that they
will settle, now, I’m not saying you do this, but there are other plaintiffs’ lawyers, they will settle
for pennies on the dollar, and they rarely go for structural relief that will actually cure a
problem. They want to go in and sue, get some money, but ultimately not fix the problem. How
do you think about that dynamic? What’s a way to make it more profitable to actually cure
market structure problems, as opposed to just doing a cash grab?
Ashley Keller: First of all, I’ve heard that criticism before. Second, I hate to admit, I think it is
fair, particularly in these large class action settlements. One of the problems is, if you’re settling
for a billion dollars or you’re settling for $5 billion, your fee is more or less the same. Because in
a lot of these circuits, the judge is not going to reward you more than three times your lodestar,
or five times your lodestar, some amount like that. They take your hourly rate, they say you
deserve a nice premium because you did such a great job for the class. But I’m not going to keep
increasing your amount for every new billion that you extract.
Ashley Keller: Even though it sounds greedy for me to say this, I promise it’s more in a public-
minded way, it would actually be better if you just said it’s a flat percentage of the recovery. The
more you recover, the better off the plaintiffs’ lawyers are going to do. Because plaintiffs’ lawyers
are just like private businesses, greedy. They respond to money and monetary concerns. They’re
mostly not doing this for altruistic reasons.
Ashley Keller: Another major thing that I think is crucial, and judges already have this tool,
but they need to realize how important this tool is, particularly in the realm of antitrust: Rule 23
class action settlements need to be vigorously scrutinized by the judge. They need to make triply
sure that the consumer is being adequately protected and getting a good risk-adjusted price
based on the merits. If the plaintiff has survived summary judgment and Daubert, and they’re
about to impanel a jury, and then the defendant says, “Yeah, we would love to settle for four
cents on the dollar,” a judge should reject that settlement, even if it’s a billion dollars or $5
billion. If what the defendant really owes is 50 or 100 billion, they need to pay a bigger premium
in order to compensate consumers for the harm that they’ve caused.
Ashley Keller: Judges have this tool in their toolkit already. They don’t have to bless a class
action settlement, but they need to use that tool in a more muscular way, even as the dollars
seem eye-popping, because these companies are getting away with a lot. When you have
concentrated corporate power, when you have a trillion-dollar company or a $4 trillion
company, a billion dollars is a drop in the bucket. It’s like half a day’s worth of interest on their
cash balance.
Matt Stoller: I get these postcards in the mail all the time for, you know, “You may be a part of
this settlement. Send this in.” And I’m like, I think if I send this in, it’s going to cost more for the
stamp than what I’m getting back.
Ashley Keller: They’re counting on that.
The Conservative Split on Litigation Finance
David Dayen: What you bring up is interesting, saying that’s a fair criticism of plaintiffs’
lawyers, because if you think about the traditional left-right divide here, the right kind of doesn’t
like plaintiffs’ lawyers. The Big Beautiful Bill almost defunded litigation financing, which is
something you helped to create. Give me the case that the conservative legal movement is
actually wrong about the plaintiff’s bar. Do you think this divide is changing in any way?
Ashley Keller: I don’t think that there’s a monolithic view in the conservative legal movement.
The attempt to kill litigation finance was brought by Senator Tillis, who I would describe as a
Chamber Republican. And it was opposed by people like Senator Mike Lee, who I would
describe as part of the new coalition of right-leaning thinkers. So I definitely think there are
plenty of good conservative allies on my side.
Ashley Keller: My pitch would just be: if we believe in free markets, if we think access to
capital is important for any other industry or business, it should be considered important to the
legal business. To the extent that people are investing in lawsuits that are extremely expensive, they’re doing that because they think the lawsuits have merit, or they wouldn’t be getting a return. We want meritorious lawsuits to be brought. We particularly want very expensive, high-stakes antitrust lawsuits to be brought because that’s going to have maximal protection for consumers. You can’t pursue those cases with just a couple of bucks lying around. And if you make lawyers only dip into their personal home line of credit in order to fund it, you’re going to get underfunding and therefore too few litigations brought to protect the consumer in the optimal way.
Mallory v. Norfolk Southern and Corporate Chartering
Matt Stoller: I want to get to a couple of tentpole legal questions that I think our audience will
not hear from anyone else. I want to start with a case you won in 2023 before the Supreme Court
called Mallory v. Norfolk Southern Railway. Right now there’s a, people might have heard about,
litigation challenge between OpenAI and Elon Musk over corporate chartering. OpenAI was a
charity and then they became a for-profit company. Traditionally, in the 19th century, corporate
regulation happened through the chartering process. The antitrust came later, and the
regulatory state, and all these other things, they came later. It was state charters of corporations
that determined how they baked in the regulations. Mallory v. Norfolk sort of seemed like that
kind of old 19th century model is coming back. Tell us about it. What is it, why did you argue it,
and what is the significance?
Ashley Keller: Mallory was a big personal jurisdiction case. You’re right, it sort of harkens
back to that era. It actually rests on an old Oliver Wendell Holmes opinion called Pennsylvania
Fire. The thrust of it is: a state is allowed to insist that a corporation that wants to do business in
that state, that is from a different state, consent to personal jurisdiction for all lawsuits that
could be brought against that company, whether it’s brought because of contact that the
company has within the state or whether it’s brought by something that the company did
anywhere else. They have to be subject to the suit, and they can be made to consent to it as the
condition for doing business in the state.
Ashley Keller: This is a very familiar concept. When corporations started to become a thing,
the very first corporations that were formed, as you say, they were chartered. The legislature had
to give special permission to them to exist as a corporate entity, as opposed to just a partnership
of individuals. If they wanted to do business in another state, they had to go to that state’s
legislature and get a new charter. So you essentially had to incorporate in more than one state as
you started to expand your footprint across the country. Legislatures obviously thought that they
had plenty of power to say yes or no to your expansion.
Ashley Keller: For all the people who want to raise doctrinally the dormant Commerce Clause
or something like that as your god-given right as a corporation to do business elsewhere, here’s a
news flash. The Constitution does not give you a god-given right to limited liability. You do not
have a right to proceed in business as a corporation. It’s something that we choose to do as a
society because it’s useful, because maybe it is efficient, because it has all sorts of benefits. But
shareholders of a business do not have a right to a liability shield. And states have every right to
say, “If you want that privilege, if you want to do business here and enter contracts and
potentially commit torts and not have your shareholders pay for it if you can’t ultimately afford
to make good when you do harm, you are going to be subject to our rules and conditions.”
There’s a price to be paid for that limited liability, and the price can be consent to personal
jurisdiction.
Section 230, Speech, and Citizens United
David Dayen: I’m wondering, since you’ve obviously done quite a bit of work on Google, one of
the major areas of litigation around not just Google but social media and platform tech firms in
general are all these cases involving speech. There’s NetChoice. There are questions about
whether we should keep Section 230 of the Communications Decency Act alive. And there are
these cases that were just decided by juries in New Mexico and California over addiction of
social media, giving damages to individuals. How do you see all of these playing out, particularly
at the Supreme Court level, where I assume some of these things are going to go?
Ashley Keller: We had an opportunity a couple of terms ago to maybe get more clarity. I think
the Court very narrowly disposed of some of those cases, so we’re still awaiting that clarity. I’ll
take a step back and I’ll say a couple of things about it. First, corporations cannot have their cake
and eat it too. They should not be allowed to say “It isn’t our speech, it’s someone else’s speech,”
when that helps them avoid liability, and then say, “Oh no, we’re content curators, this is our
speech,” when it helps them avoid liability. They should have to pick a lane. We can’t live in this
cognitive dissonance world where it’s heads corporation wins and tails the consumer loses.
That’s BS. So I’m not OK with that, no matter what.
Ashley Keller: Obviously, you don’t have a First Amendment right as an individual or as a
corporation to addict people to your product, and to manipulate them in deceptive ways. Fraud
has never been protected speech under the First Amendment.
Ashley Keller: To really peel back the layers of the onion and tell you what type of
conservative I am: I’m not so sure that Citizens United should apply to these huge multinational
corporations. There’s a big difference between a closely held business with one or two
shareholders, or a family business like Hobby Lobby, and a company like Google that has tens of millions of shareholders. What does it even mean for the corporation to engage in corporate
speech? It’s obviously not speaking on behalf of all of its shareholders, because half the
shareholders disagree with their speech. When you’re using other people’s money to engage in
speech, I’m not sure that you have a First Amendment right to do that just because you sit on the
board or you’re the CEO of this business.
Ashley Keller: There are all sorts of issues coming down the pike. And I think this is going to
be a sharp dividing line between the Chamber Republicans and the new coalition of
conservatives. I think my side is ascendant. I hope it is, because I think we’re right. I think all
those issues are coming to a head in the next couple of years, and I hope to play some part in
shaping it in the right policy direction.
Textualism and the Sherman Act
Matt Stoller: One of the things I’ve gotten really frustrated with is how courts manage
antitrust, particularly as we’re starting to see more monopolization cases and now we’re starting
to see remedies. The particular one I would finger would be when Judge Mehta basically said
that Google was a monopolist, but they don’t really have any penalties. He said that for a
number of reasons. But it was also contra important Supreme Court precedent, which says you
have to terminate a monopoly if you find one, there’s a bunch of things you have to do, disgorge
the fruits, and so on. How do you think about that problem? What’s wrong with the judiciary in
terms of interpreting antitrust law? And if you want to take it here, you’re an originalist,
textualist, any of the conservative theory, how would you do an originalist interpretation of the
Sherman Antitrust Act?
Ashley Keller: Great question. I am a textualist. And one of the problems, this goes into the
second part of your question, one of the problems with the federal antitrust laws is, almost from
the beginning, like 10 years after the statute was passed, courts sort of viewed it as an invitation
for them to make up rules. It’s like, “Oh, these words are really loose and at a high level of
generality. What’s a contract in restraint of trade? I guess that means we can make it up.” I don’t
think that’s what Senator Sherman thought when he was getting this through Congress. They
thought they were codifying some of the old common law rules that policed trusts and
corporations, and making sure that you couldn’t change that common law tradition anymore.
That’s why you write a statute. You’re not trying to create common law. You’re trying to lock in
place a set of rules and conditions that now the judiciary has to apply. And almost from the
beginning, they viewed it as, “We have a free hand to make stuff up.”
Ashley Keller: As a conservative, I love the late, great Bob Bork, and The Antitrust Paradox
was super influential on me when I was younger. But when I look back at it now, regardless of whether you think he was right or wrong on the policy, it has nothing to do with the text of the
Sherman Antitrust Act. He doesn’t even pretend to be interpreting the statute. A lot of what he
says is basically running roughshod over the principles that the people who enacted that statute
were trying to codify into law.
Ashley Keller: We need to have a return to textualism when it comes to antitrust enforcement.
And we need judges to realize: these are the rules Congress set. We’re not free to just consult the
brooding omnipresence in the sky and say, “Tying is totally fine because we think that it’s good
economic policy.”
Ashley Keller: That ties into the second part of your question. Precisely because judges feel
like this is a common law area with only a little bit of statutory text to guide them, I think they
feel like they have a free hand to do whatever they want on the remedies phase too. And look,
breaking up Google would be a big deal. If you feel like you are about to cause massive
disruption and the sky is going to fall, and they tell you all of the consequences and it’s just so
catastrophic and you don’t think Congress kind of made you do it, a lot of people, and I’m not
criticizing any judge, would shy away from that and say, “Let me be more incrementalist, let me
do something a little bit more of a half-measure, let me check it out.” Basically because, “I don’t
want to be the guy or the gal who does the huge thing, and if it has bad consequences, you know,
people point the finger at me.”
Ashley Keller: It would be much easier and better if they got their minds wrapped around: it’s
not up to you. You didn’t decide that this was the remedy that has to be achieved. This is a
dictate from Congress. There are not allowed to be monopolies, and they have to have the spoils
of their monopolization taken away from them. That was Congress’s decision. And if the sky falls
because of it, Congress can make different decisions going forward if they want to protect Sam
Altman and Mark Zuckerberg and whomever. I don’t think they will. It would be extremely
unpopular if Congress tried to do that. But if Congress wants to change the law, Congress can
change the law. Judges should judge.
Matt Stoller: Hear, hear.
Qui Tam and the False Claims Act
David Dayen: Final question. There looks like there’s going to be a big conservative fight over
the False Claims Act, over qui tam law. What this does, it allows individuals to sue on behalf of
the government for fraud, and they can get a partial amount of those claims as an award. Some
say it raises separation-of-powers questions. What is your view on that issue?
Ashley Keller: As an originalist, obviously I take history and tradition very seriously. There is
a history and tradition of qui tam cases going back to before we were a republic. It has a long
and venerable tradition in Anglo-American law. I am very skeptical that the separation-of-
powers argument is ultimately right. There may be some problems with the particulars of how
the current relator statute works, for example, the inability of the government, if it chooses not
to intervene up front, to eventually have some say in the lawsuit. That could be a problem. But
that’s severable. That’s something you could find to be a problem without saying that the core of
qui tam is problematic.
Ashley Keller: The government has the right under the Constitution to sell property of the
United States or dispense with property of the United States. A chose in action is property. So I
think in passing the relator statutes, Congress is essentially saying, “We’re giving the relator a
piece of the recovery.” That gives the relator a real, constitutional, concrete Article III standing
stake in the case. We’ll see how it percolates through the court system. I think there’s a case
pending in the Eleventh Circuit right now. But ultimately, if this ever comes before the Court,
the right answer would be, I won’t predict what the Court will do, but I’ll predict what I think the
right answer is, the right answer is that these suits, at least in some form, should be allowed to
proceed, and that whistleblowers should be allowed to be a real party in interest who goes and
recovers fraudulently obtained funds on behalf of the taxpayers of the United States.
David Dayen: I want to thank you for coming on and inviting us into some of your thinking
around these important legal questions. Really enjoyed it. Thanks a lot.
Ashley Keller: My pleasure. Good to be with you both.
Outro
David Dayen: I think, as a good liberal, I think of the Supreme Court as this monolithic
institution run by six conservatives who want big business to win everything. There is a lot of
evidence for that. You can just look and see, the Supreme Court tends to side with big business,
and it’s gotten much, much worse. Not like it was awesome when we had Ruth Bader Ginsburg
there siding with monopolists, but it was slightly better. I do think that what we are seeing, and
one of the things I’ve learned over the last five, ten years as I’ve been dealing with more
conservatives, there are splits among conservatives. They do have different views about
corporate power and how it intersects with the administrative state.
Matt Stoller: Yeah. We got a glimpse of that with Ashley today. The big cases the Court has on
these issues have yet to be answered, and those splits have yet to fully play out. Although we’ve
seen things here and there. Justice Thomas gave an opinion around social media, I believe on Section 230, where he kind of intimated that it should be abolished. So we’re going to see more
of this play out in cases over the next five years. I think it’s unclear where it’s going to end up.
Obviously, the Court is very conservative on sort of basic partisan matters, so we saw the
elimination of the Voting Rights Act, essentially, just recently. But on these business matters, it
has been a corporate court, and it’s going to have to reckon with the originalist interpretations
that it claims to uphold. I think Ashley is a great spokesman for that reckoning.
David Dayen: And I would say, I think most people do not hear when the Supreme Court rules
in ways that are unexpected, because we have a very partisan press operation. The partisan
narratives are kind of out there, and they aren’t the cases that are on the front page. These cases
end up being debated by nerds, basically. To be frank, you can’t raise money off of them. It’s not
a Roe v. Wade, “raise money because this is the worst thing ever.” It’s like, “OK, well,
Pennsylvania now does this case with personal jurisdiction for out-of-state corporations.” Ain’t
gonna send a fundraising email on that one. So it’s how our markets are structured.
Matt Stoller: It’s certainly important. I think Ashley is really, I do see it as he’s forcing the
Court to come to terms with its stated beliefs and opinions, and doing it in a way that I think
could be really transformational. There are aspects of this conservative approach that go after
Chamber Republicanism. And it is, I think, more populist in nature, and closer to the way we
think about the world. It’s not the way we think about the world, but it’s closer to the way we
think about the world.
Matt Stoller: One thing that’s really interesting is that he just argued this case before the Court
over Monsanto. There was a similar clause that would do the same thing as what the plaintiffs in
that case want to do at the Supreme Court, which is remove liability from Monsanto. There was
a clause of that in the farm bill, the House farm bill. And last week, that got removed, with a
transpartisan coalition of Republicans and Democrats who said, “This is ridiculous. We’re not
going to get rid of liability for a cancer-causing industry just because they say so.” So you do see
these things pop up.
David Dayen: I will say this: the difference between bipartisan and transpartisan is,
transpartisan is when the people behind it are weird. And bipartisan is when they want to steal.
Matt Stoller: Yeah. When two lobbyists come together, it’s bipartisan. When weirdos come
together from different parties, it’s transpartisan.
David Dayen: We’re going to have another great episode for you next week. Thanks for being
here. It’s Organized Money.
Source:
This conversation was originally published as an episode of the Organized Money podcast,
hosted by David Dayen of The American Prospect and Matt Stoller of BIG and the American
Economic Liberties Project. The transcript has been lightly edited for clarity. Speakers and
substance are otherwise unchanged.
Ashley Keller is a founding partner of Keller Postman LLC. The advertiser arbitrations against
Google referenced in this conversation are described in further detail in the firm’s public
materials.