Did Google really walk away from the Yahoo search deal because of the “risk” of litigation, as Google suggested at the time? No. Because of the certainty of it. When Google walked, the Justice Department was three hours away from suing it for violating the Sherman Act:
AmLaw: “We were going to file the complaint at a certain time during the day,” says [Sandy Litvack, the bulldog litigator who the goverment brought in to handle the case]. “We told them we were going to file the complaint at that time of day. Three hours before, they told us they were abandoning the agreement.”…
The never-filed government complaint would have charged that the agreement violated Sections 1 and 2 of the Sherman Act… “It would have ended up also alleging that Google had a monopoly and that [the advertising pact] would have furthered their monopoly,” Litvack says.
The complaint would have sought a preliminary injunction to stop the agreement from going forward. “The fact that we filed a lawsuit would not by itself have stopped them,” he says. “We would have had to get an injunction from the court, and we would have sought that.”
After Google walked away, the DOJ released a statement saying that it had informed the companies it was planning to file suit. The release did not specify how close Google came to getting sued, however, and Google’s explanation for why it walked didn’t mention the government’s explicit intention:
Google counsel David Drummond on November 5: [A]fter four months of review, including discussions of various possible changes to the agreement, it’s clear that government regulators and some advertisers continue to have concerns about the agreement. Pressing ahead risked not only a protracted legal battle but also damage to relationships with valued partners.
And remember who was behind the effort to get regulators to block the deal? That’s right: Microsoft. Payback for Google’s (currently successful) attempt to break up a possible Microsoft-Yahoo deal.
AmLaw: Litvack acknowledges that Microsoft Corporation and other companies lobbied the department to block the agreement, both publicly and and in private meetings. Litvack insists, though, that Microsoft’s lobbying had no bearing on his recommended course of action or on the division’s ultimate decision.
(Via Jim Goldman at CNBC)