In a statement today, FTC chairwoman Deborah Platt Majores said she wouldn't recuse herself from taking part in consideration of the Google-DoubleClick merger.
The privacy groups Electronic Privacy Information Center and Center for Digital Democracy had filed a formal request that she do so, based on her husband's status as partner in the law firm of Jones Day, which is representing DoubleClick.
Now that she's refused, a lawsuit is still a possibility, Marc Rothenberg told me in an email. "That may still happen," he said when asked.
What's still not totally clear is whether Jones Day is representing DoubleClick before the FTC or just before the European Commission. Majoras said the firm is only involved with the EU:
Jones Day does not represent DoubleClick before the FTC and, indeed, in dozens of meetings and submissions, has never appeared or even been mentioned. The law firm of Simpson, Thacher & Bartlett LLP represents DoubleClick before the FTC.
Furthermore, Majoras said, her husband is a non-equity partner at Jones, so her decision would have no impact on his compensation.
I understand that as a fixed participation partner, his compensation will not be increased or affected by changes in the firm’s income. Further, all benefits my husband receives from Jones Day are the same as those earned by other similarly situated non-equity partners in the firm. Therefore, my husband does not have a financial interest in the firm’s income, and thus I do not have an imputed financial interest.
CCD and EPIC find the argument less than "persuasive," they said in an argument. They suspect the worst: That Jones Day took down a page about their work for DoubleClick to cover up Majoras' conflict:
The logical conclusion is that Jones Day represents Doubleclick in this matter, became aware of the conflict of interest once it was brought to their attention, and sought to destroy the relevant evidence. Jones Day’s admission makes clear the case for recusal and it is nowhere addressed in the Chairman’s statement.
They called on the FTC to post the ethics official's findings on the agency's website.