FTC Hires Former DoJ Lawyer For Google Antitrust Case

Jeffrey Burt is a senior editor for eWEEK and contributor to TechWeekEurope

Google is facing a possible courtroom trial from the antitrust investigation by the FTC after it hired a former DoJ lawyer

Google is now firmly in the target crosshairs of the Federal Trade Commission over alleged antitrust issues.

The FTC announced 26 April that it was hiring a prominent outside litigator to oversee its antitrust investigation of the search giant.

And while the commission was careful to say that the hiring of former federal prosecutor Beth Wilkinson doesn’t mean that the government is expecting the case to go to trial, outside observers said the message was clear.

Trial Expected

“It’s a watershed moment when you hire someone like this,” David Wales, a former FTC official, told The New York Times. “This shows Google that if it doesn’t give you the remedy you want, you’re going to litigate.”

Wilkinson, who was the lead prosecutor in the case against Oklahoma City bomber Timothy McVeigh and his accomplice, Terry Nichols, currently is a lawyer with the firm Paul, Weiss, Rifkind, Wharton & Garrison. She will help lead the team of prosecutors who will decide whether Google violated antitrust regulations.

The FTC is investigating whether Google abused its dominant position in the search engine space – it currently holds about 66 percent of the market, followed by Microsoft’s Bing – to unfairly promote its own products over those of its rivals in search results. Google has come under similar scrutiny from regulators in Europe, where the European Commission has been conducting its own investigation and reportedly will make a decision within the next few weeks whether to pursue legal action.

The commission opened its investigation of Google last year.

FTC Commissioner J. Thomas Rosch, who recommended to the commission that Wilkinson be hired, has said that her hiring did not mean that regulators have decided whether to bring Google to court. He told The Wall Street Journal that Wilkinson would serve as a mentor to the FTC staff, but added that she “is somebody who is going to carry out the duties of a trial lawyer. … Obviously, we would not bring her in if she were going to be completely idle.”

Wilkinson told The New York Times that “technology is transforming our society.”

“It affects people at every level,” she said. “As a mother, I see it with my kids. As a professional, I see it affecting our work. And in society, it impacts privacy, competition, our interactions with other people – just about everything. Working on the investigation will be a great challenge. I don’t underestimate Google.”

Social Search

While rare, the federal government has used outside litigators, most notably when the Justice Department hired David Boies for its case against Microsoft in the 1990s. The department last year hired Glenn Pomerantz in its efforts to block AT&T’s $39 billion (£24bn) bid to buy T-Mobile.

Google, as its influence in the tech space has grown, has come under increasingly intense scrutiny from regulators, rivals and civil liberties advocates over issues of everything from business practices to privacy. The most recent worries centre around the company’s “Search, plus your world” social-search feature, which pulls in posts and pictures from users’ Google+ accounts into search results, and makes Google+ contacts and relevant Google+ Pages more readily searchable.

The FTC in January decided to bring the new social-search feature into the antitrust investigation, saying the concern was that it was another way Google could inject bias into search results.

However, Google executives are not sitting idle. The company this month reported that it had spent $5.03 million (£3.1m) during the first three months of 2012 lobbying Congress, a jump over the $3.76 million (£2.3m) it spent during the first quarter of 2011.

In addition, Google in February announced it had hired Susan Molinari, a former Republican Congresswoman from New York, as its top lobbyist in Washington, a job she began in March. Molinari is Google’s vice president of public policy and government relations for the Americas.

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