Commentary

Just An Online Minute... Conflict Of Interest In GoogleClick Case?

This week, two privacy groups asked Federal Trade Commission chair Deborah Platt Majoras to recuse herself from participating in the review of the $3.1 billion Google-DoubleClick merger because her husband is a partner at DoubleClick's law firm, Jones Day.

The law firm's response: Shortly after the petition was filed, it deleted all references to DoubleClick from its site. But earlier versions of some pages were still available -- ironically enough, from Google's cache. The now-purged copy on the Web site said the firm was "advising DoubleClick... on the international and U.S. antitrust and competition law aspects."

DoubleClick's official statement, issued after news of the potential conflict broke, is that Jones Day is only advising the company in Europe.

While the old version of the Web site conflicts with DoubleClick's official statement, whether the firm is representing Jones Day just in Europe or also in the United States really isn't the point.

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Either way, it seems that Majoras has a potential conflict of interest because Jones Day stands to gain from the merger's approval at the FTC. Stephen Gillers, a leading ethics expert, told MediaPost that he believes Majoras has no choice but to recuse herself even if Jones Day hasn't appeared before the commission on this matter.

In fact, it's fairly obvious that Majoras' husband will benefit financially from the merger going through. Even if he doesn't share directly in the profits, he still receives compensation and bonuses from the firm -- which can obviously afford to pay him more if it's doing well. What's more, success in a high-profile case like Google-DoubleClick could bring in more business, which also contributes to his compensation. Consider, too, he's the head of business development in Washington, D.C.

Additionally, decisions by the FTC will potentially affect how European antitrust regulators view the deal. If the FTC approves the deal but one or two commissioners write separate opinions proposing restrictions on the companies, those opinions might influence European regulators, who have until April 2 to render a decision.

While it's up to Majoras to decide whether to recuse herself, Jones Day really didn't do itself -- or its client -- any favors by deleting references to DoubleClick from its Web site. Whatever Jones Day's motives were, it now looks like the firm is trying to hide something.

Further, whatever Jones Day hoped to accomplish, the firm doesn't appear to have taken into account that people can still view the old page via Google's cache. On Google, information lives for a very long time -- and not just information that Google's engine displays to the public via the results page. Information collected about users' search history also lives for many, many months. Which is, of course, one of the reasons privacy groups are wary of the company.

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