FTC Brandishes Big Legal Gun in Google Antitrust Investigation

Interest in the United States Federal Trade Commission’s (FTC) antitrust probe into Google was given a jolt with the commission’s decision to enlist seasoned white-collar crime litigator Beth Wilkinson to head the investigation.

“When we have the opportunity to augment our team by bringing on a lawyer with Beth Wilkinson’s skills, judgment and experience, it is an easy decision to do so,” Richard Feinstein, director of the FTC Bureau of Competition, told the E-Commerce Times.

There are likely two predominant reasons why the FTC would bring Wilkinson into the investigation, according to Yasha Heidari, managing partner at the Heidari Power Law Group.

One is to increase the likelihood of settling the matter; the other is “to prepare itself should the case ultimately require litigation,” Heidari told the E-Commerce Times. “One thing is certain — it does not bode well for Google.”

Google spokesperson Niki Fenwick declined to comment on the issue.

Who Is Beth Wilkinson?

Wilkinson’s biography on the website of Paul, Weiss, Rifkind, Wharton & Garrison, where she works as a partner in the litigation department, states that she has particular expertise in white-collar criminal defense, internal investigations, product liability and complex civil litigation.

Her recent clients include pharmaceutical giant Pfizer, for whom she served as lead counsel; tobacco giant Philip Morris U.S.A.; and the CEO of a biotech company being sued by the Department of Justice.

Wilkinson’s previous experience includes cochairing the white collar crime practice at a major Washington law firm, and serving as a special attorney to the U.S. Attorney General in the Oklahoma City bombing case against Timothy McVeigh and Terry Nichols.

What Wilkinson’s Entry Might Portend

Various government agencies, including the FTC, “frequently utilize outside counsel for a number of different reasons,” Heidari said. “Sometimes outside counsel may have a special expertise in a complex area of the law, such as antitrust law, or may have particularly strong skills that would prove useful, such as being an experienced litigator.”

Bringing in a “renowned litigator” like Wilkinson “would not only prove useful should this matter ultimately need to go to trial, but it would also increase the FTC’s leverage with regard to any settlement negotiations,” Heidari continued.

That’s because getting someone of that caliber on the FTC’s side signifies the agency is “taking the matter very seriously and [is] prepared to take the case to trial,” Heidari elaborated. It could also predispose the other side, in this case Google, to seek a settlement because “any time a party considers settling a matter, it performs a risk assessment where it evaluates the possible outcome and [the] likelihood of success in a trial.”

Wilkinson was hired because “we just want to run the most comprehensive investigation that we can,” FTC spokesperson Mitchell Katz told the E-Commerce Times. “It should not be read as a signal that we’re moving to litigation.”

Wilkinson’s office referred the E-Commerce Times to the FTC for comment.

Why the Focus on Google

Google has been dogged by complaints that it’s abusing its dominant position in online search to favor its advertisers.

Since March, online travel sites Expedia and TripAdvisor have filed complaints with the European Union against Google on this issue.

The European Commission had been scrutinizing Google over possible antitrust behavior since November 2010, after recieving complaints from various parties, including Microsoft.

Argentinean regulators are also scrutinizing Google over its search and search advertising practices. And it’s facing a probe in South Korea, where antitrust regulators reportedly raided its office in Seoul last year.

Google fanned the flames when it announced Search Plus Your World in January. This essentially added results from Google+ to search results.

The announcement led the Electronic Privacy Information Center (EPIC) to call for an FTC investigation. It also kicked off a war of words between Google and Twitter.

Google has nearly 87 percent of the global search engine market and more than 84 percent of the U.S. market, according to Karmasnack.

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