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Monday, December 17, 2012

Daily Report: Legal Allies Against Microsoft, Divided on Google

Two lawyers who helped build the antitrust case against Microsoft in the 1990s are playing important roles in an antitrust investigation of Google. But this time, Gary L. Reback and Susan A. Creighton are on opposite sides, Steve Lohr reports on Monday in The New York Times.

The two lawyers, and the positions they have taken, point to some striking similarities yet also significant differences between the two high-stakes investigations - and why the pursuit of Google has proved challenging for antitrust officials.

In 1996, Mr. Reback and Ms. Creighton were partners, representing Netscape, the pioneering Web browser company. They wrote a 222-page “white paper,” laying out Microsoft's campaign to use its dominance of personal computer software to stifle competition from Netscape, the Internet insurgent. After Netscape sent the repo rt to the Justice Department, the head of the antitrust division ordered an investigation.

Mr. Reback is now a lawyer at Carr & Ferrell in Silicon Valley, where he represents several companies that have complained to the government about Google. In Google, Mr. Reback sees a familiar pattern - a giant company trying to hinder competition and attack new markets. “From my perspective, it's an instant replay of the Microsoft case,” Mr. Reback said in a recent interview.

Not to Ms. Creighton, a partner in the Washington office of Wilson Sonsini Goodrich & Rosati, who is in Google's corner. She has testified before Congress on Google's behalf and negotiated with the Federal Trade Commission, the agency conducting the antitrust investigation, and where she was a senior official during the Bush administration.

“Google's conduct is pro-competitive,” Ms. Creighton declared in her Senate testimony last year. “Far from threatening competition, Google has co nsistently enhanced consumer welfare by increasing the services available to consumers.”

Separately, in the talks between the F.T.C. and Google to negotiate the terms for ending the antitrust investigation, things seem to be going Google's way, two people who have been briefed on the discussions said Sunday. A crucial issue in the talks, accusations that Google biases its search results to favor its own services, has been taken off the table, said the two people, who spoke on the condition of anonymity because the negotiations are continuing.