Is Google-Yahoo Search Deal Illegal? Maybe. Does This Matter? No.

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jerryyang4.jpgThe Yahoo-Google search test (YHOO) was the most important news in a flurry of Microsoft-Yahoo events last week (MSFT): If the test becomes a full-scale outsourcing deal, most analysts agree that this would drive an immediate, material increase in Yahoo's operating profit, perhaps as much as $500 million a year.

Microsoft immediately responded to the test news by suggesting that a Google-Yahoo partnership (GOOG) was illegal and threatening to use whatever "options" it had at its disposal to block it.

So here are the key questions:

1. Would a Yahoo-Google partnership be illegal? Answer: "Maybe."

2. If it is illegal, would this really matter to the ongoing Microsoft-Yahoo negotiation? Answer: "No." In our opinion, the legality or illegality won't affect the Yahoo-Microsoft negotiations, at least if a deal is concluded within the next few months.

We continue to believe that the Yahoo-Google search test was a smart move that will likely lead to a higher takeout price for Yahoo. We think Microsoft will likely pony up more because:

  1. Yahoo will likely be able to demonstrate that its cash flows with Google outsourcing will be higher than they would be without it, and,
  2. Microsoft will want to block a Yahoo-Google partnership.

We believe the deal will have these benefits for Yahoo whether or not it is illegal--because even a swift injunction would take several months (more likely, several years), at which point the Microsoft-Yahoo negotiations will be ancient history.

WOULD A YAHOO-GOOGLE SEARCH DEAL BE ILLEGAL?

We spoke to an anti-trust attorney about the legality and practical implications of a Google-Yahoo search deal. (The attorney was NOT a disinterested party, so if others want to question or correct our interpretation, please do so).

Our understanding is this:

If Microsoft, the government, or another party can show that the Google-Yahoo deal represents an agreement between the companies in which Google is effectively paying Yahoo to shut down a competitive service, the deal would be declared illegal under anti-trust law. If, on the other hand, Yahoo can demonstrate that the deal is merely a buy-vs-build decision in which Yahoo is unilaterally choosing to implement Google's AdSense service, then outsourcing would NOT be illegal.

Our source says that an "agreement" in this case does not need to be an explicit contract: It merely needs to be a "meeting of the minds" in which the two largest players agree to do business with each other in order to enhance their businesses.

Google's market share in search, our source believes, exceeds the anti-trust share threshold (70%). The source also believes that the fact that the Google-Yahoo search test is obviously a response to the Microsoft bid, combined with Google's public reaction to the bid and reported offer to help Yahoo resist the bid, would provide plenty of fodder for attorneys to argue that the outsourcing deal represents an "agreement" between Google and Yahoo.

Yahoo and Google, meanwhile, would presumably argue that outsourcing is just a smart business move for Yahoo, one that many Yahoo analysts have been recommending for years. That the move comes in response to Microsoft's bid is irrelevant, the argument will probably go: It's still a unilateral buy versus build decision.

DOES THE LEGALITY OF THIS MOVE MATTER IN THE NEAR-TERM?

Even if a Yahoo-Google search partnership were patently illegal, which we don't believe it is (the arguments seem reasonable on both sides), we believe it would take several months to get a summary judgment and/or injunction. More likely, litigation surrounding the partnership will continue for years, long after any of this matters to the current Microsoft situation.

For practical purposes, Microsoft won't want to take the risk that the Google-Yahoo partnership passes muster with the regulators, so it will likely increase its bid as a way of avoiding this risk.

We therefore continue to believe that the search test is a smart move by Yahoo, one that should lead to a higher takeout price.

See Also: Brilliant Yahoo-Google Test Should Lead to Higher Takeout Price



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59 Comments

Bikerdude said:
That is just how Microsoft got where it is today. IBM basically gave them the pc operating system business so that they could concentrate on their large workstation and server markets. Not a bad move for Google.

joeblow said:
Well, I see I’ve lured out one em-bolded challenger who comes forward with these two points of argument that the association between Yahoo and Google (or certainly a merger) could be challenged on an anti-trust basis. My challenger both offers his argument and also provides the assumption of a valid defense at the same time.

The case where it would be - if the agreement:

“…represents an agreement between the companies in which Google is effectively paying Yahoo to shut down a competitive service, the deal would be declared illegal under anti-trust law.”

And the case where it would not be - if the agreement:

“…is merely a buy-vs-build decision in which Yahoo is unilaterally choosing to implement Google's AdSense service [rather than continue its own failed search algorithm]*”

*bracketed phrase added for the reasonable (and I contend, honorable) advance of my argument that any dealings between Google and Yahoo, that don’t otherwise violate anti-trust laws, would form even a lesser threat to violate them specifically because of the addition of this phrase.

My response to Mr. Em-bolded:

It is unequivocally true that Yahoo’s decision is being made unilaterally by Yahoo. Were it not so, they would not have spent the last few years attempting to both defeat Google’s challenge to their market share (and promote their own) by spending money trying to build a better algorithm, nor would they now risk diverting their paid search advertising customers to Google’s control (the influence from this test is unmistakable), since it can be rightly observed that their customers are being sent a signal with this test that Yahoo might choose to abandon its search algorithm altogether.

Assume some theoretical company “XYZ” and, upon learning that XYZ is attempting to innovate and construct an algorithm superior to Google’s, in both its ability to attract willing consumers to use it to search, rather than Google’s search, and in its ability to generate higher net revenue for Google’s paid search partners, then were Google to intervene in order to absorb XYX for the purpose of preventing it from developing the algorithm and thus delivering greater efficiency than its own, and thus simply depriving Google of its ill-maintained inefficiency and the revenue from the same, then Google would be guilty of anti-trust violation if it attempted such suppression.

But that’s not the case here. Yahoo already has an established history of attempting to build-out and continuously improve a search algorithm that is failing both its consumer search participants and its paid search advertisers. Failure is a relative consideration but it is indeed applicable in this case by any stringent application of logic.

Thus Yahoo already has a system that is disenfranchising all its customers of efficiency they would otherwise have were Yahoo to outsource its paid search to Google. Strangely enough, Microsoft is also depriving its search participants and its paid search advertisers in a similar fashion, and, accordingly, the case would be as easily made that Microsoft itself should shutter its own search algorithm and sub-set Google’s in its place. This would enhance its own MSN subscribers’ search efficiency and allow its paid search advertisers to earn higher net revenue for searches conducted on MSN.

Now, let’s look at Mr. Em-bolded’s stance that Justice (here and afterward referring to all anti-trust jurisdictions collectively as “Justice”) might seek to intervene upon a claim by Microsoft that the elements of a search deal between Google and Yahoo might trigger a regulatory review on the basis of some limited level of market share being constructed with the dealing - for example, 70% or more.

That would mean that Microsoft would be faced with a duty set for itself, absent any Google-Yahoo dealings, to challenge every marginal deal that Google were to establish with any company, not just Yahoo, that caused Google’s market share to approach or exceed that 70% threshold... and that would in turn allow Microsoft’s challenge, of that marginal entity dealing that pushed the limit over the threshold, to prevent that one entity alone to extract a benefit for itself from dealing with Google that the previous marginal entity having constructed the same dealing, unopposed, was allowed. Thus Justice would be intervening and discriminating against consumers and vendors with the intervention but doing it marginally at Microsoft’s behest.

To the extent that Justice therefore would require marginal customers of Yahoo, both search participants and paid search advertisers, to withstand inefficiency, then Justice would be countermanding a core principle in the whole administration of anti-trust regulation, a mandate to facilitate the fairness of access to markets and the provision of efficiencies for consumers.

I will suppose for these reasons that Justice would not intervene, either upon a limited deal for paid search outsourcing between Yahoo and Google, nor upon a merger between the two, nor upon the marginal attainment of 100% paid search market share by Google, whatever its means for attaining that total share that do not violate any of the elements of unfair monopolistic behavior.

I further contend that Mr. Em-bolded has brought forth his most powerful yet only case, and I respectfully submit that it has been countered with my arguments.






FM said:
Note MSFT is falling for the ruse by doing nothing w/ it's offer price.

Messa said:
I was just watching Tech Ticker where Aaron and Henry are debating the pros and cons of mergers of Yahoo with either Microsoft or AOL and weighing all of the implications it would have on Yahoo and I have come to one undeniable conclusion ....

Henry's hot !

joeblow said:
Henry, your last comments here:

http://finance.yahoo.com/tech-ticker/article/11158/Yahoo-Microsoft%3A-One-Down%2C-Two-to-Go

...are what MSFT needs to focus on, and not Mr. Em-bolded's arguments which just open a can of worms that may result in more regulatory risk than MSFT itself wants to endure.

Don't do it, MSFT!... Don't start a fire you can't put out.

Marah Marie (URL) said:
joeblow, that was brilliant. Of course Microsoft would have to go after Google every time they tried to make any deal that pushed their market share over 70%, because it's an antitrust issue that could easily be argued in court and because it could be said Microsoft is failing fiduciary duty their own shareholders if they don't. That was an enlightening stream of thought.

I have only one question: if Google is over the 70% threshold now, as mentioned in the article above, can't any interested party swoop in to stop this deal (eg, not just Microsoft, but any search company who does not have a de facto monopolylike they do)?

Also, you say that Yahoo! is failing both consumers and advertisers with an inefficient search algorithm (I don't strictly agree, but my opinion for purposes of this comment is neither here nor there), which introduces a bit of folly to Yahoo! striking a deal with Google: if Y!'s search results are inferior, then Google's ads running alongside them will be inferior, too - will they not?

Assuming that's true, where is the gain in this deal for advertisers or consumers? Yahoo's own advertisers lose out because Google takes some of their ad slots and kicks them to the curb. Consumers don't gain anything because (now I assume) Google will be forced to run second-tier advertising on Yahoo!, not their cream of the crop. Google can't give them any better ad inventory than what Y!'s "inferior" results already produce, they can only supply possibly different ad inventory to such an inefficient search engine - not superior...

Assuming all that, the only way to correct the sheer folly of this deal would be to change Y's algorithm...see where I'm going with this? Google may come out the winner, but I don't see how profits will increase that much for Yahoo! through this deal, nor how consumers will benefit. Maybe at this point I would need an ad inventory expert to find the missing pieces of this puzzle...any thoughts?

Marah Marie (URL) said:
Sorry for the errors in the above comment, BTW. I had a neighbor over my house when I was writing it and got distracted...

joeblow said:
MM,

Let’s have some fun. I’ll be both tongue-in-cheek and serious in my reply to you (after quotes), and you and other readers can then apportion my remarks** accordingly:

Quoting you:

“joeblow, that was brilliant.”

**like you expected otherwise?

“That was an enlightening stream of thought.”

**Turandot up really loud with a touch of whiskey, a little serious thought, and it’s logical quicksand for my opponents. If I put the Devil Ray on you, it’s useless to resist. It’s like I told Walter, I don’t take prisoners.

“I have only one question: if Google is over the 70% threshold now, as mentioned in the article above, can't any interested party swoop in to stop this deal (eg, not just Microsoft, but any search company who does not have a de facto monopoly like they do)?"

**Yes, but they’d have to first be harmed or discern harm caused to the detriment of the public, and prove either case. Otherwise, just wanting to swoop in is no different than a frog wanting to fly. Just because it’d want to avoid bumping its butt when it hopped is not enough reason.

“Also, you say that Yahoo! is failing both consumers and advertisers with an inefficient search algorithm (I don't strictly agree, but my opinion for purposes of this comment is neither here nor there)…”

**Let me be clear, Dear… Decker has already written her own troopsters how dearly “clear” she wants them to regard their “commitment” to search... so dearly clear in fact that they’re testing an alternate service for their search participants and paid search vendors. And let “me be clear” about the 3% limited test. A 3% sample of any substantial set of observations, if chosen to be statistically (scientifically) representative of the total, can be a quite vigorous and accurate estimate of the total of the observations. Elections are often called with just 3% of precincts reporting.

“…if Y!'s search results are inferior, then Google's ads running alongside them will be inferior, too - will they not? Assuming that's true, where is the gain in this deal for advertisers or consumers?”

**It’s not the origination of the search (the jumping off point) that is key, but rather the a-l-o-g-r-i-t-h-m that rules. The algorithm is the thing that delivers eyeballs directly to those things (whether commercial or non-commercial) that the eyeballs are most interested in. Sometimes those eyeballs are most interested for purely intellectual reasons (like browsing a library’s shelves), but when the eyeballs are looking to buy something from a vendor, Google’s algorithm has proven to give vendors more eyeballs that are motivated and ready to buy... thus a greater efficiency for generating revenue against the cost of paying for the search referrals.

“Google may come out the winner, but I don't see how profits will increase that much for Yahoo! through this deal, nor how consumers will benefit. Maybe at this point I would need an ad inventory expert to find the missing pieces of this puzzle...any thoughts?”

**Much of what you ask me is beyond my understanding, but it’s not beyond Decker’s… and it’s her test that’s being run to determine answers to your questions stated here. If Decker didn’t want or need to know, she wouldn’t be running the test, nor writing her troopsters imploring them to not worry about what the test means for the company.

Messa said:
In another post, Joe, you implied there was a Mrs. Blow.

It must be magic being married to you....:)

joeblow said:
Why, thank you Messa.

Yes, there's a Mrs. joeblow.

34 years ago we flipped a 900 Z1 Kawasaki about 6 times, all the while playing freeze tag, mid-air, with another likewise flipping couple, their ex-mount a less worthy but equally accomplished acrobatic Triumph 650, all ending up in the same heap in a honeysuckle patch, in a ditch, around about midnight on a God-forsaken dirt road... a dirt road supposedly known "like the back of his hand" by the pilot of the Triumph, who, in the lead and being trusted with the lives of the 4 of us, lead us down a path of destruction, whereupon the Triumph goes down in loose gravel, in that curve of mention that the Triumph pilot had lived 90% of his natural life riding at least 10 million times, at about 65 mph, followed by our worthy beast... and the tumbling began.

Unrelated bikes/not mine:

http://www.motosecours.ch/Images/Triumph650Bonneville05xl.jpg

http://www.classicbikes.co.uk/images/z1machine06.jpg

She-who-must-be-obeyed got a scar on the knee from the episode. And if you break it, you have to buy it, so I did.
--------
p.s. Henry, I intended to post this here rather in the previous topic, but what the heck?... I'll repeat it. It's your server:

Mr. Em-bolded, you might pass along to your Prince:

Liu is begging the Prince... Anti-trust is way too big a riddle to risk losing your head over it... and it's a Pandora's Box of the biggest sort for your Kingdom in particular.

http://www.youtube.com/watch?v=jfefT_2Z8i0&feature=related

Liu says "Lay low, keep your head."

So, pull out your checkbook instead, and then integrate the merger to facilitate compliance with anti-trust regulations in all jurisdictions. You're cruisin' for a bruisin' already with Nellie. Place my argument alongside yours, and send them over to Nellie for a vote. Yes, I know... I've raised the sweat on your brow.

You've just been given the best advice you've ever had without having to pay one penny for it.

Messa said:
"She-who-must-be-obeyed got a scar on the knee from the episode. And if you break it, you have to buy it, so I did."

And in the crash, she got a Rumpole'd husband?...:)

joeblow said:
Ah, Messa... so you must know the significance of the Penge Bungalow Murders case.

Do You?


Messa said:
Of course....That's when Rumpole asked S.W.M.B.O. to marry him, right?....It was when he was just starting out as a lawyer, I think....I've never read the books, but I love the old T.V. shows....I'm a sucker for P.B.S.

Give me "Brideshead Revisited" over the reality crap they show today anyday.....Make that cheap, reality crap.

joeblow said:
Messa,

I'm surprised at you.

The Penge Bungalow Murders:

The significance was it was his first case as a junior barrister conducted "without a leader"... an unusual circumstance in British trial procedures... and he pridefully always related his experience gained in blood stains and [forensic] typewriter keystroke examinations from the case... as he often recanted the case over a glass of "Chateau Fleet Street" at "Pommeroy's."

If you remember the bumbling Guthrie Featherstone, he was the misappropriated Queen's Counsel (Q.C.) and also carried the distiction of Minister of Parliament (M.P.). Thus he was a Q.C.M.P., an ancient distinction in which the Queen of England (or King) could basically name someone as "appointed to the bar."

I think now a barrister has to serve a number of years as a practicing barrister before qualifying for the title.

To make a long story short:

As you might imagine, Horace Rumpole was a hero of mine. Why?...

Because if he was armed with the Right... and the Facts... and the perfect knowledge of the Law, then when he locked the Beam of Justice onto his objective, the outcome was all but guaranteed. You couldn't beat him. I like that in a man. I especially like it in a woman, too.

You face Horace Rumpole... You lose.

p.s. I had the hots for Phillida ("Miss Trant") and I just never could imagine Phyllida and Claude Erskine-Brown knockin' books!... Call me twisted, but I just couldn't visualize it!

I could imagine Barney and Thelma Lou, but not Phyllida and Claude Erskine-Brown... Nosireee, I just couldn't!

joeblow said:
Messa,

Sorry, that would be boots that I couldn't imagine... I hate not being able to edit.

Da man said:
Hey all. Googles search share in the UK is very nice 79%. Yes, 79% of us brits use Google.co.uk as our default search provider. #Googles world wide search share is 72%. In China Googles search share is 25% In Europe it's over 65% and in Australia there search share is not far from ours in the UK.

Simon said:

The offer is out at $31 (although yes its cash/stock offer and the current value is a bit under 30)... But, there is no sign that it will be pulled especially with recent events.

Nearly everyone believes this will go through at a share price between 31-35

Yahoo had some nice search ad revenue news... we all believe that Q1 can not be that bad because Jerry/ BOD would have been at the table with MSFT already..

Where is the momentum that Q1 is going to be good and MSFT will sweeten the pot a bit and get this done as everyone conceeds!?

WHY... please tell me WHY.. is this stock still trading under 28.50?!

Messa said:
I don't know if you're being surprised at me is a good thing or not.

P.S. I couldn't imagine Claude Erskine-Brown "knocking boots" with anyone....LOL

Marah Marie (URL) said:
If you take joeblow's original phraseology - "knocking books"...it plays out much better. :)

joeblow said:
Thanks, Henry, for the topic feed. I'm sure you know by now that I didn't let you down.

Evidently Mr. Em-bolded must've had enough. When you take your best shot and just get clocked for the effort, it's not a real confidence builder, huh?
--
You have a big following and lots of readers, but none of them (nobody in media, anywhere... or business, anywhere... nobody, anywhere, period) will come here and defeat my contention, restated here:

Google is not at risk of regulatory anti-trust restraint; not with a partial deal with Yahoo, not with a total acquisition of Yahoo, and not in any means whatsoever that otherwise do not violate the prohibitions against unfair monopolistic behavior.

I'm still here waiting if anybody wants to give it a whirl...

I'm a cat... and I'm waiting.

Messa said:
MM

LOL....Yes, it does.

joeblow said:
Well, if you'll look at your trusty Mickey Mouse wristwatch, you'll notice you haven't run a new topic in two days.

We've gone silent again. It's like news is fighting so much gravity, it can't escape the Black Hole.

joeblow said:
http://www.marketwatch.com/news/story/microsoft-yahoo-deal-has-low-antitrust/story.aspx?guid=%7B77A390E1%2D2706%2D42C4%2D8A2D%2D876BD87A4CD1%7D&dist=TQP_Mod_mktwN

Quoting from the story by Benjamin Pimentel:

“Microsoft Corp.'s bold bid to buy Yahoo Inc. would likely be approved by U.S. and European regulators while an expanded partnership between the Internet giant and rival Google Inc. could prove ‘troublesome,’ a UBS analyst said Monday.”

" ‘While the government could investigate this partnership if both companies exchanged sensitive data, which would be viewed as an antitrust violation, there is no indication the companies would have engaged in this,’ Bellini's note said. ‘Moreover, a long-term partnership is likely much more troublesome from a regulatory point of view.’"

“Analysts had speculated that Yahoo may outsource its search functions to Google as part of a hypothetical partnership, but Bellini said Manishin believes such ‘an outsourcing deal likely would be problematic and face a long approval process.’"

(end of quotation)
--
Benjamin Pimentel,

Nothing in this story offers any substantive reasons for Bellini’s assumptions that an expanded partnership between Google and Yahoo would be “troublesome.”

In my opinion, neither does it offer a valid debate against regulatory approval for a complete merger of the two, were they to elect this course.

One would think that you would’ve challenged your source to substantiate her claim, particularly when your most substantial quoting of her comments do anything but substantiate it. She both implies a concern were both companies to exchange sensitive data, certainly a potential anti-trust violation, but even she goes on to state there’s no “indication” either company has done this. My own personal opinion is that I would seriously doubt they’d run that risk.

What “regulatory point of view” is Bellini citing?… Bigness?

She’s of course welcome to her opinion, but what’s it based on?… Just a gut feeling that the Department of Justice would hop to Microsoft’s urging?

What’s her basis for the claim, or the basis of the corporate attorney she relied on? I think it’s a fair question.
--
As I see it, Google can be likened to a boat builder that is currently building boats that float. All other builders of boats build boats that don’t float. They sink at a rate inversely proportional to the rate of float of Google’s boats by a factor (relatively) of something like two-fold (or more). The best other boat builders among the lot (in order: about 18% of all boats, and 5% of all boats, respectively) can’t float more than about half the boats they build (even when they get them to the water) when compared to the floating boats of Google.

Consequently, in order to be worried about anti-trust restraints applied to Google, because its boats float, one would expect the Department of Justice to require, at Microsoft’s behest, that all search consumers and paid search advertisers should be required by an official mandate to continue buying boats that don’t float. Is that likelihood the point that Bellini would find “troublesome?”

Who could be made to buy a boat, if that boat won’t float?… Is that the business that Justice is about?

I doubt it.

joeblow said:
This last comment missed the boat:

And, is there any single one of the other boat builders, or any emergent new builder as yet unknown among boat builders, that could claim to be deprived of any opportunity it might otherwise have to build boats that float, simply because Google were to float the boats of Yahoo's marginal customers?

Too, wouldn't the act of restraining Google also be tantamount to requiring that some of their customers' (current or prospective, marginal) boats should be sunk for the benefit of improving the illusion that the other builders' boats do actually float?

That's it!... Justice should sink their customers' boats and preserve the illusion. Is that the game they'd likely play?

joeblow said:
WTF is this?... A dance marathon?
--
So anyway, might as well do something to kill the time.

Messa?... What's the only word (root word) in the english language with an unbroken sequence of 3 double letters?

MM?... What's the significance of the ending duet "O soave fanciulla" that closes ACT 1 of "La Boheme?"... Happens no where else in opera.

Clue:

http://www.youtube.com/watch?v=D_UtIy5VEz0&feature=related

Henry?... What's the significance of today's low volume on Yahoo?

Mr. Em-bolded?... How much wood could a woodchuck chuck if a woodchuck could chuck wood?

joeblow said:
IBM is blowing away with currency translation.

joeblow said:
http://images.search.yahoo.com/search/images;_ylt=A0geu9LjYAZIJkIBUJFXNyoA?ei=UTF-8&p=Anna%20Netrebko&fr2=tab-web&fr=sfp

Oh, my God!... I'm in love.

MSFT and YHOO and GOOG can kiss my ass.

Marah Marie (URL) said:
"MSFT and YHOO and GOOG can kiss my ass"

Joeblow, you are waaaaaaay cooler than I ever thought, that comment absolutely cements it. You said there is a Mrs. joeblow, right? Too bad....

And to answer your question, I have no idea. I'll watch the video, though. Is it in French? Haven't listened to or spoken French in 20 years, so I don't imagine this will go too well, but I'll try... :)

And, yes - it's just a wind-tunnel in place of hard news lately, no matter where you look - isn't it?

*yawn*

So boring.

Marah Marie (URL) said:
Oh, worse than French, it's an opera, joeblow???...sorry, no can do...

Messa said:
Joe,

Bookkeeper....but, I kinda cheated.....My mother is an English major and taught at Wayne State for awhile.....I use to get my letters from camp sent back to me with red circles on them...:)

monk said:
http://tech.groups.yahoo.com/group/anti-ms-takeover-yahu

jefferson faudan said:
this is just how IBM made it big in the business... they utilize all the necessary ways and means for a better production in a cost efficient way


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