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Just Anticorruption
At Google Hearing, A Reluctant Antitrust Enforcer Now Calls For Action
By Mary Jacoby | September 21, 2022 6:15 pm

It’s an occupational hazard of being a lawyer: Advocating effectively for your client can sometimes lead to what the layman might call inconsistency in your principles.

At the grilling of Google Inc. in the Senate Judiciary’s antitrust subcommittee Wednesday, Covington & Burling LLP partner Thomas O. Barnett railed at Google’s dominance in search engine use and advertising, speaking on behalf of his client, the Expedia travel search service. “The right answer is appropriate antitrust enforcement,” he said, using various posters to illustrate his points.

Thomas Barnett at Wednesday's Senate Judiciary antitrust subcommittee.

This is the same Thomas Barnett who, while heading up the Department of Justice’s Antitrust Division in the latter years of the George W. Bush administration, issued a controversial 2008 report that concluded too-vigorous antitrust enforcement could actually harm consumers by hamstringing the best companies. And if the best companies became monopolies? Well, that’s the natural result of being the best!

His successor as Antitrust chief, Barack Obama-appointee Christine Varney, made one of her first acts the withdrawing of Barnett’s report in early 2009. It “raised too many hurdles to government antitrust enforcement,” the Justice Department said in a news release.

While at the Justice Department, Barnett was known as a defender of Microsoft Corp. As an Assistant Attorney General, he once tried to deep-six a complaint by Google about Microsoft by intervening with state attorneys general.

On Wednesday on Capitol Hill, Barnett criticized Google’s Android mobile phone operating system software. Google is “using compatibility as a club to force handset manufacturers to do things to help Google and harm competitors.”

Compatibility was the heart of many of the complaints against Microsoft, which had a monopoly in desktop computer operating systems and thus the power to make or break competitors. The European Commission had to force Microsoft to share code with other software companies whose survival in the marketplace depended on producing products that ran smoothly with Windows.

Microsoft has been a long-time client of Covington, which most recently advised the software giant on its $8.5 billion purchase of Skype. Microsoft is a backer of the Fair Search coalition, an anti-Google group of which Expedia is a member.

The current probes of Google’s business in the United States and Europe are being compared to the intensely fought antitrust battles over Microsoft in the 1990s in Washington and in the 2000s in Brussels.


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