Sep 10, 2008 2:52 PM

Former Antitrust Litigator Bearish on Justice's Case Against Google/Yahoo

The Google/Yahoo search deal hit a bit of a rough patch this week, with the Association of National Advertisers coming out against it and the Justice Department’s hiring of veteran antitrust lawyer Sanford M. Litvack. The New York Times reports that some analysts think the Litvack hire is evidence DoJ plans to challenge the deal, […]

The Google/Yahoo search deal hit a bit of a rough patch this week, with the Association of National Advertisers coming out against it and the Justice Department's hiring of veteran antitrust lawyer Sanford M. Litvack.

The New York Times reports that some analysts think the Litvack hire is evidence DoJ plans to challenge the deal, which Google delayed for four months to give Justive time to vet it -- as a courtesy.

“The hiring of an outside lawyer like Mr. Litvack is rare and represents the clearest indication that the Justice Department could be planning to mount a legal challenge to the deal, some analysts said. ‘They wouldn’t bring in a special counsel unless they were preparing to litigate,’ said Sam Miller, a partner at Sidley Austin in San Francisco who acted as a special trial counsel in the department’s first antitrust case against Microsoft.”

But Stephen Axinn, a Litvack acquaintance and former lead counsel to the Antitrust Division of DoJ, thinks Justice has a tough case on its hands, outside counsel or no outside counsel. Axinn, now lead partner at Axinn Veltrop and Harkrider, told CNNMoney that
Google competitor Microsoft looks like the sole motivator behind opposition to the deal and says that "unlike a merger, this is a transaction that does not require any approval by a government agency."

"First I would pray," Axinn responded when asked how he would handle the case if he were hired by the DoJ.

He then outlined how he would pursue the case, and its prospects:

"I think that what I would also want to do is to demonstrate that there is such a substantial market share in online searching that Google dominates that market, that its only single major rival for that is Yahoo. And by co-opting Yahoo, it will prevent Yahoo from being a more effective competitor in search engine usage and the advertising that goes with it. I think that is the essence of the government’s case, and I think it’s a hard case.”