US hires top lawyer to lead Google case

Mark Patterson in Financial Times, April 26, 2012

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The US has turned up the heat in its long-simmering antitrust investigation of Google, bringing in a prominent litigator to lead its case.

The Federal Trade Commission’s hiring of an outside lawyer with a record in high-profile criminal and civil cases is a rare tactic for the agency and suggests that it is gearing up to sue the search group, according to legal experts.

Jon Leibowitz, chairman of the FTC, said on Thursday that Beth Wilkinson, a partner in the litigation department of Paul, Weiss, Rifkind, Wharton & Garrison in New York, had been appointed to take charge of the agency’s Google investigation.
A former general counsel at mortgage group Fannie Mae, Ms Wilkinson’s cases working for the government and in private practice have included presenting the closing argument that secured the death penalty for Timothy McVeigh, the Oklahoma bomber, and leading the defence in prominent product liability and class action cases for Pfizer and Philip Morris.

The hiring of a special counsel indicates that Mr Leibowitz believes his investigation has turned up strong evidence against Google, said Samuel Miller, who took on a similar role as special counsel during the Department of Justice’s first investigation of Microsoft in 1994.

The FTC “would not have made this public unless it had a strong case and was prepared to take it to court”, he said.

Google refused to comment.

The US agency began its investigation early last year, echoing a separate review under way in Brussels, and has not shown its hand publicly before. Bringing in a special counsel suggested that the FTC could be ready to take action within months, according to antitrust lawyers.

Google faced a similar threat three years ago from the DoJ, which brought in a litigator to look into its proposed search partnership withYahoo, and dropped its plans when a lawsuit was close to being filed two months later.

“It’s probably more than a negotiating stance – it’s a big step to take,” Mark Patterson, a professor at Fordham Law School, said of Ms Wilkinson’s hiring.

Legal experts have warned that bringing a successful complaint against Google could prove difficult under US law unless the government can turn up clear evidence that the search company deliberately set out to harm competitors.

Complaints to the government have centred on damage other companies say they have suffered by being relegated in Google’s search rankings and by the preferential treatment Google has given in its search results to its in-house services in areas such as maps and comparison shopping.

Both Argentina’s Comision Nacional de Defensa de la Competencia and the Korea Fair Trade Commission in South Korea have also opened investigations into certain business practices, according to a company filing this week.

Ms Wilkinson’s record as a white-collar criminal lawyer and expert in internal corporate investigations would make her well-suited to investigating Google’s actions, said Mr Patterson.