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Yahoo-Google Advertising Deal Under Increased Srcutiny

Tuesday, 9 Sep 2008 | 3:42 PM ET
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Yahoo and Google's advertising partnership announced in June is a big deal, in fact the promise that it would increase Yahoo revenues was one reason used in defending against Microsoft's proposed takeover. Now that proposed partnership is increasingly under attack.

The Justice Department reportedly hired Sanford Litvack, a prominent anti-trust litigator to consult on its probe into Googleand Yahoo'splanned deal, a sign the government could be preparing to challenge the deal as anti-competitive. Litvack has quite the resume: he was the DOJ's antitrust chief under Jimmy Carter and Disney's former Vice Chairman. Most recently he was a partner at the law firm Hogan & Hartson, where he focused on antitrust and trade regulation cases, among other things. The DOJ won't comment on whether or not Litvack is now on their team, but he's now longer on Hogan & Hartson's website, and he's reportedly been asked to examine evidence on the Yahoo-Google deal.

That's not all, news of Litvack's hire follows a powerful advertising industry trade group coming out against the Yahoo Google deal. The Association of National Advertisers, which represents marketing powerhouses like General Motors, P&G, and Wal-Mart, is appealing to the Justice Department to block this deal. I spoke to the president of the ANA, Bob Liocide, who pointed to the fact that a combined Yahoo-Google would influence over 90 percent of the search advertising market, which poses real concern to prices. Liodice says there's simply too great a risk that this deal would reduce competition and lead to higher prices and a lower return on investment to advertisers. This risk of course comes at a time when thanks to economic pressures, advertisers are pulling back their spend, and focusing much more on return on investment.

A Deal: Yahoo, Google & Antitrust
The Gogle-Yahoo search advertising deal appears to be facing bigger antitrust scrutiny, reports CNBC's Julia Boorstin

What happens now? Option one: the DOJ approves the deal and it goes forward as planned. Option two: the DOJ has some problems with the deal, approaches the two companies with their concerns, and they tweak the deal until a compromise is made. Or option three, the two companies proceed with their partnership without Justice Department approval, and then the government, if it has a problem with the deal, could potentially sue, as it did with the Microsoft anti-trust case.

Google and Yahoo say they see no problems with the deal. At the Allen & Co. conference in July Google CEO Eric Schmidt told me that because the Yahoo deal is for ads, and not search, and because it's non-exclusive, he doesn't foresee any anti-competitive issues.

The stakes are high, especially because this deal was used as a pawn in Microsoft'stakeover play, so I'll be watching carefully to see how this works out.

    • Justice signals challenge to Google-Yahoo deal

Questions? Comments? MediaMoney@cnbc.com

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  • Working from Los Angeles, Boorstin is CNBC's media and entertainment reporter and editor of CNBC.com's Media Money section.