Gary Reback: FTC blew it with Google decision

Noted antitrust attorney slams FTC for "naive" approach in settling with Google, warns of anticompetitive impact on smaller companies.

Dismayed, yes. Disappointed, to be sure. But Gary Reback, one of Silicon Valley's best known antitrust attorneys, gave no indication today that his hopes for a government antitrust case against Google had been dashed by the FTC's decision today to settle its investigation into the search company with a deal.

FTC Chairman Jon Leibowitz announces the Google agreement. Screenshot by CNET
Reback, who played a key role mobilizing support in Washington for an antitrust lawsuit against Microsoft, has urged similar action against Google. As a counsel at the firm Carr & Ferrell LLP, he has argued publicly for the last couple of years about Google's behavior, saying it has had anticompetitive effects on smaller companies he represents.

But after the FTC closed its probe in return for concessions from Google, which pledged to change its business practices, Reback said the news didn't shock him.

"We've been worried for some time that the FTC didn't have the wherewithal or was cowed by Google," he said. "As I listened to (FTC chairman) Jon Leibowitz talk today, it sounded as if he had stars in his eyes."

"Some of it was beyond naive," Reback continued. "He went out of the way to say that he expects Google to abide by voluntary commitments...I suppose that people can debate the legal standard here but the process that this went through, the lack of follow-through, the fact that the FTC didn't go after documents when Google claimed privilege -- these kind of things eroded any confidence they would have done anything positive for my clients."

In signing off on the FTC agreement, Google pledged to let creators of vertical search products opt out of having their results "scraped" and displayed on certain Google results pages. Also, Google agreed to license some of the patents it acquired from Motorola more liberally.

The one surprise for Reback: He thought that the FTC might wait until the European Comission finished its separate antitrust investigation into Google's business practices and take that decision into account before making its next move.

"What has been the most striking for clients that I represent is the lack of gravitas in the entire investigation," Reback said. "Most of my clients who complained to the FTC got nothing back from the agency -- not a postcard, nothing. They produced documents and the FTC followed up on none of them. When I brought people into complain, the staff there wasn't receptive and I had to complain at a higher level even to get a response.

This problem is not going to go away," Reback added. "A lot of these companies are going to get wiped out" [as a result of Google].

Separately, Politico reported that Google has spent $25 million on a multiyear lobbying campaign in Washington as it engaged proactively with regulators in hopes of undercutting antitrust action.

 

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