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DoubleClick Goes MIA At FTC Chief's Old Law Firm

kdawson posted more than 6 years ago | from the now-you-see-it dept.

Government 39

theodp writes "FTC Chairwoman Deborah Platt Majoras has refused to recuse herself from the agency's review of Google's $3.1B DoubleClick acquisition, despite her current and past ties to DoubleClick law firm Jones Day. EPIC and the Center for Digital Democracy, which had requested her recusal, are keeping up the pressure as DoubleClick-related pages and references have been disappearing from Jones Day's website. Although the statement issued by the Chairwoman suggests Jones Day's DoubleClick representation is limited to the European Commission, the Google cache of one MIA document boasts: 'Jones Day is advising DoubleClick Inc., the digital marketing technology provider, on the international and US antitrust and competition law aspects of its planned $3.1 billion acquisition by Google Inc.'"

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39 comments

Quite surprising (3, Interesting)

gravesb (967413) | more than 6 years ago | (#21719630)

I'm surprised she's willing to take this kind of risk, and I'm very surprised that Jones Day is aiding her. Its just one client, and one matter before the FTC. Better that she recuse herself and be able to go back to Jones Day with no issues of impropriety than to play games and face some bar action. Most states have more liberal conflict guidelines for government employees, but sometimes arguing the letter of the law isn't worth the PR cost.

Re:Quite surprising (2, Insightful)

Jah-Wren Ryel (80510) | more than 6 years ago | (#21719938)

I'm surprised she's willing to take this kind of risk, and I'm very surprised that Jones Day is aiding her.
Lawyers are this country's ruling class.
Pride goeth before the fall.

Re:Quite surprising (1)

mastershake_phd (1050150) | more than 6 years ago | (#21720258)

sometimes arguing the letter of the law isn't worth the PR cost.
 
PR cost? You think this is going to get any play in the media?

Re:Quite surprising (4, Insightful)

hey! (33014) | more than 6 years ago | (#21720432)

Well, it smells fishy to me. In a nutshell, you are asking why anybody in this position wouldn't recuse themselves?

If you were looking at a decision in whose outcome you didn't have a stake in, and there was any question of conflict of interest, it would be in your plain self-interest (as you point out) to recuse yourself.

This leaves only two logically possible explanations: either (a) she's acting against her own self-interest or (b) she has a stake in the outcome. In some universes where government accountability still functions, she could be doing both. But at least one of these has to be true.

In all fairness, we can't exclude the possibility that she is working against her own self-interest. Maybe the FTC simply can't come to a reasonable decision on anything like this without her unique and valuable participation. Maybe she's just really egotistical. Or maybe she's naive and is being used as a patsy. On the other hand, she was a partner at Jones Day, so presumably she's not naive.

Of course, we might be missing a third possibility (c) : maybe she doesn't give a rats ass for what the law says if nobody is going to hold her to it. Given that she served under Gonzales at Justice after she left Jones Day, and her former colleagues there would be responsible for going after her, it seems plausible. Naturally this doesn't preclude a, b or both.

Re:Quite surprising (2, Insightful)

cfulmer (3166) | more than 6 years ago | (#21720730)

Or (d) she has a job to do. When you're named to the FTC, it's because your expertise is valued. She should be involved in everything unless theres a strong enough reason not to.

There are two general duties involved in a Lawyer's duty to avoid conflicts.

The first is the duty of loyalty -- you generally can't be on "both sides" of a deal, because your duty to be loyal to one side will conflict with your duty to be loyal to the other. So, if one client wants to sue another, they both need to find another lawyer to do it.

The second is the duty of confidentiality -- you can't put yourself in a position where you could use confidential information about a former client. If, when you defended a (now) former client, you found out all sorts of salacious details, you can't litigate against them.

I don't think either of these are implicated here. She doesn't represent either DoubleClick or Google, nor has she. And, she doesn't have any knowledge about either, nor (apparently) does her husband.

Besides, you can't realistically have a rule against marriages between lawyers who work for firms on opposite sides of a transaction. Among large firms in any given city, there's an enormous number of cross-marriages. That rule would put them all out of business, and then how would two companies merge?

Re:Quite surprising (2, Interesting)

hey! (33014) | more than 6 years ago | (#21721066)

Or (d) she has a job to do. When you're named to the FTC, it's because your expertise is valued. She should be involved in everything unless theres a strong enough reason not to.


Agreed. However, you probably missed that we'd gotten past that point in the thread already, because we've already stipulated that she has the appearance of a conflict of interest -- and a strong one at that. Judges, after all, routinely recuse themselves in these situations. Surely they are chosen because their experience is considered valuable.

Getting the job done is the whole reason that people who are trusted to be neutral, such as judges or commissioners, recuse themselves. Doing their job requires that their rulings and actions be beyond any reasonably grounded question that they have an improper interest in the result. If any such question were not clearly resolved, the decision would be tainted, and surely gone over again. That's an expensive and disruptive way of not getting the job done. Recusing yourself is the right thing to do because valuable as your experience may be, it is almost never in practice irreplaceable.

[discussion of common law duties snipped]

Besides, you can't realistically have a rule against marriages between lawyers who work for firms on opposite sides of a transaction. Among large firms in any given city, there's an enormous number of cross-marriages. That rule would put them all out of business, and then how would two companies merge?


I think you're a little bit off the trail here.

You wouldn't prevent the lead lawyer for the defendant from arguing the case when he's married to a partner in the plaintiff's law firm. That's up to the defendant. If the lawyer doesn't reveal this tidbit to the defendant, that would be really, really bad on too many levels to name, starting with ethical violation and moving up through mistrial. But granted, you wouldn't prevent the defendant from going ahead with his lawyer, once he was duly informed. On the other hand, you'd sure expect the judge to recuse himself in that case, unless there was literally no other judge in town who could take the case. Especially if he himself were a former partner in that law firm.

The case for regulatory officials is even greater, since it is extremely likely that official will apply to his former law firm after his term in office expires. It's not exactly forthright to pretend the problem here is that this person has prior inside knowledge of the deal. That isn't the question at all. The question is whether she has a conflict of interest.

Re:Quite surprising (1)

Achromatic1978 (916097) | more than 6 years ago | (#21721718)

I'm surprised you didn't extrapolate on the concept of loyalty, as in 'misplaced'. She, as a partner in Jones Day, stands to gain or lose monetarily based on the outcome of any action taken by the FTC against DoubleClick. From as straightforward as the amount of work produced by outside counsel that DoubleClick requires. If the FTC were to move against DoubleClick, then all that advice on things related to the merger become irrelevant, and ergo Jones Day doesn't have work they can bill for, and she as a partner does not earn income out of this work. Ergo, she has a loyalty to protect her interests, and those of her law firm, if nothing else.

Re:Quite surprising (1)

cfulmer (3166) | more than 6 years ago | (#21724624)

(First of all, she's not a partner; her husband is. Not really relevant, since his money is presumably hers.) If Jones Day were a small firm, your argument may hold some weight. But, it's among the largest in the US. The portion of his income that's going to come from fees associated with the merger is tiny. And, if the merger is typical, Jones Day has probably already finished most of its work.

Lawyers BREEDING!!!??? (2, Funny)

whitehatlurker (867714) | more than 6 years ago | (#21722184)

Besides, you can't realistically have a rule against marriages between lawyers

Really! Lawyers MARRYING!??? BREEDING??? In this day and age!

WELL! There should be laws against this sort of thing!!

Re:Quite surprising (1)

SuperBanana (662181) | more than 6 years ago | (#21720620)

sometimes arguing the letter of the law isn't worth the PR cost.

What PR cost? Their customers are other big corporations. The American public also has a notoriously short memory, and the voting American public cares more about how tough you are on terrorists and how much corn subsidies you're throwing their way.

Re:Quite surprising (0)

Anonymous Coward | more than 6 years ago | (#21721068)

"American public cares more about how tough you are on terrorists"

The funny thing is if you ask people what they think it means to be "tough on terrorists", they think it has something to do with taking off your shoes at the airport.

Re:Quite surprising (0)

Anonymous Coward | more than 6 years ago | (#21721052)

Why is it surprising that a Republican politician is using their office in a way that ensures profits for their corporate day job?

This modus operandi has been standard at the highest levels of the GOP for years now, and as such it is unsurprising to see that the lower levels no longer even care about the appearance of propriety. People tend to behave as ethically as their bosses, after all.

Ethics? (0)

Anonymous Coward | more than 6 years ago | (#21719636)

I'll take Business Ethics for 500.

Aaaand the answer is... Re:Ethics? (0)

Anonymous Coward | more than 6 years ago | (#21720526)

What is another example of the corrupt regime currently in power?

Privacy (3, Funny)

proudfoot (1096177) | more than 6 years ago | (#21719684)

The privacy groups oppose the merger because, they said, it would give one company too much private information about consumers.
These fears are unfounded. Google has made enough information available for everyone, and I don't think DoubleClick really has any information that can identify you personally.

Re:Privacy (2, Interesting)

Janos421 (1136335) | more than 6 years ago | (#21719970)

Not so sure: so far Google defense about privacy was "If you don't like our method, you don't have to use our services".
But if Googel acquire DoubleClick, you won't have choice, Google will gather information about you.

Re:Privacy (2, Funny)

iminplaya (723125) | more than 6 years ago | (#21722854)

But if Googel acquire DoubleClick, you won't have choice, Google will gather information about you.

Even if
127.0.0.1 ad.doubleclick.net ?

Re:Privacy (0)

Anonymous Coward | more than 6 years ago | (#21723950)

Why can't you stop double-clicking? Use "Enter" key instead...

Re:Privacy (0)

Anonymous Coward | more than 6 years ago | (#21720066)

They already save search histories, and with DoubleClick, they'll be able to connect those search histories with general browsing activities.

What do people search for? Lots of things, but often they search on their own names and those of family members, relatives, friends, high school and college classmates, etc. Browsing activities include posting under registered handles at sites like this one, and logging into sites that serve personalized web pages like amazon.com. Both the content and writing styles of those posts can be analyzed, as can the preferences from the e-commerce sites. They also can get the hometown or state of the surfer via his/her ISP. It's not a stretch to think that in 5-10 years' time you'll have VPs bragging that they can identify anonymous surfers through their search+browsing activity with 80+ pct certainty.

Re:Privacy (1)

ross.w (87751) | more than 6 years ago | (#21720274)

No they don't. because I've been blocking any domain with "doubleclick" in the name for years.

Failure of Imagination (1)

Qzukk (229616) | more than 6 years ago | (#21720324)

No they don't. because I've been blocking any domain with "doubleclick" in the name for years.

Because they can't possibly register any other domain...

Hubris -- Business as usual from the government (0)

Anonymous Coward | more than 6 years ago | (#21719698)

Why should this come as surprise to anybody? With incestuous relationships between business and government motivated entirely by money, this is teh status quo. What is surprising is that it is being done so shamelessly.

After the lawyers, then the stooges . . .

WTF? (3, Funny)

Cctoide (923843) | more than 6 years ago | (#21720040)

I was going to read TFA but I went MIA, probably due to a PEBKAC. Will give a sitrep ASAP.

Re:WTF? (0)

Anonymous Coward | more than 6 years ago | (#21720476)

LOL, too many TLA's, IMO.

Yawn (1)

gertam (1019200) | more than 6 years ago | (#21720674)

I read this on Friday. Why did it take Slashdot so long to cover this? Oh, and plus, it is incredibly inconsequential news anyway.

wow (1)

rastoboy29 (807168) | more than 6 years ago | (#21721226)

I can't believe a high ranking member of the Bush administration is so brazenly corrupt.

What next, pigs rain down from the sky?  It's as strange as that.

Re:wow (0)

Anonymous Coward | more than 6 years ago | (#21725356)

"An honest politician is one who, when he is bought, will stay bought."
    -- Simon Cameron

Recuse... (0)

Anonymous Coward | more than 6 years ago | (#21721384)

Deborah Platt Majoras has refused to recuse herself from the agency's review
Perhaps you mean "excuse"? Spell-checkers are great, but they won't do everything for you.

Re:Recuse... (1)

glitch23 (557124) | more than 6 years ago | (#21721698)

Deborah Platt Majoras has refused to recuse herself from the agency's review

Perhaps you mean "excuse"? Spell-checkers are great, but they won't do everything for you.

Dictionaries are great too, but they won't do everything for you. If you ever read/watched/listened to anything regarding conflicts of interest (especially with regard to the legal system) you would know that "recuse" [reference.com] is the word that is always used in situations like this.

Weasel words (0)

Anonymous Coward | more than 6 years ago | (#21721450)

Weasel words and double-speak from a lawyer. Shocking, just shocking. And *so* unexpected.

Her "bias" is too remote to matter (1)

Shydaddy (138766) | more than 6 years ago | (#21722298)

It's fine for her not to recuse herself. Assuming her husband doesn't work on the DoubleClick matter, or is walled from it, the actual chance of a conflict of interest is remote.*

You'd basically have to argue that Jones Day (which earns money from billing time, not from the value of the transaction) would profit as a whole from the merger, and her husband, as a partner, would then earn some amount from the increased partnership pool, benefiting her in some way. This would presumably incentivize her to approve the merger.

This is an extremely tenuous argument - law firm partnership profits are so diluted that her benefit, if any, would be marginal; plus, in terms of profits, Jones Day is agnostic as to the merger being approved (and probably makes more money the longer it takes). I don't recall the law off the top of my head, but I think even a federal judge is perfectly within his discretion to deny recusal in a circumstance like this, where the perceived financial interest is so remote that bias concerns weaken.

The other argument is that because her husband is a partner at Jones Day and she was an associate there, she wants all of their clients to succeed. That's just plain wrong for a lot of lawyers - firms take on clients all the time that most associates/partners don't care about or even are personally hostile towards.

I assume that the FTC or the APA (Administrative Procedure Act) have provisions that cover recusal, but I don't know them.

I don't blame her for refusing to recuse herself. This smacks of a lot of people who are against the merger looking for a technicality to cast doubt on any positive resolution. Any actual appearance of bias is weak.

*Note, if her husband actually is working on the merger or has worked with DoubleClick as a client in the past, or if she has, the whole analysis changes and she should probably recuse herself.

Where's the conflict? (1)

InternetVoting (809563) | more than 6 years ago | (#21722886)

I'm not sure I see what the conflict is. Unless she had some sort of direct dealing with DoubleClick, Jones Day is the 8th largest law firm in the world with over 2200 lawyers and represents a significant number of major telecommunications companies including AOL, DirecTV, General Electric, IBM, Lucent, Sprint Nextel, Time Warner, Verizon, and Yahoo! (see more clients [jonesday.com])

What bar should we set here? Should the Commissioner recuse herself from any case relating to any company that has worked with her previous company?

So is Google Evil Yet? (1)

sexconker (1179573) | more than 6 years ago | (#21727604)

What is it about Google that makes people look the other way?

"OMG FACEBOOK PUT UP MY BLOCKBUSTER RENTALS?"

"Oh hey - double click and google will soon form a monopoly on data mining and advertising. The one thing standing in their way is a lawyer with a serious conflict of interest. Oh well."

All the internet nerds in the world bitch and moan about privacy, corruption in the government, the actions evil corporations, and the annoyance of spam and advertising on the web. But when Google's involved, people think it's no big deal.

Dear internets: Google is not your savior, and your faith in Google will be your undoing.
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