BREAKING: Judge denies last-ditch effort by Google, Apple to have wage fixing lawsuit tossed. Trial begins May 27

By Mark Ames , written on March 28, 2014

From The News Desk


United States District Judge Lucy Koh has denied the final attempt by Apple, Google, Intel, and Adobe to have the class action lawsuit involving the "Techtopus" hiring collusion scandal tossed out.

Summing up her denial, Judge Koh wrote:

The similarities in the various agreements, the small number of intertwining high-level executives who entered into and enforced the agreements, Defendants’ knowledge about the other agreements, the sharing and benchmarking of confidential compensation information among Defendants and even between firms that did not have bilateral anti-solicitation agreements, along with Defendants’ expansion and attempted expansion of the anti-solicitation agreements constitutes evidence, viewed in the light most favorable to Plaintiffs, that tends to exclude the possibility that defendants acted independently, such that the question of whether there was an overarching conspiracy must be resolved by a jury. Accordingly, each of the Defendants’ individual motions for summary judgment is DENIED.

I took my seat in the Ceremonial Courtroom about 20 minutes early for yesterday’s hearing on the Silicon Valley wage-fixing class action lawsuit. The hearing for motions on summary judgment had been moved at the last minute to the largest courtroom in the San Jose Federal Building, but the rowed theater seats were mostly empty. Suddenly, right at the appointed time, legions of cheerless dark suits poured into the courtroom, especially onto my side of the aisle—the left side. The defendants' side.

Each of the defendants in the landmark class-action wage-theft lawsuit — Apple, Adobe, Google, and Intel — had their own team of lawyers in attendance. The three defendants who had already settled — Pixar, Intuit and LucasFilm — also brought their legal team to the hearing. The lawyers representing each firm acted both independently and jointly.

On the right side of the court room sat the plaintiffs’ lawyers from the San Francisco class action law firm, Lieff Cabraser.

I found myself sandwiched between two highly stressed associates for the defendants’ team. The one on my left laughed through her nose at every caustic comment made by the attorney for Intel. And they were caustic, arguing to dismiss the expert testimony of UCLA economics professor Edward Leamer as “bizarre.”

The purpose of this hearing was to get a ruling on the Big Tech firms’ push to have Dr. Leamer’s expert testimony and modeling tossed out.

The firms are also making one last desperate push to have the class status de-certified, but Federal District Court Judge Lucy Koh — an intense, sharp, highly engaged judge who livens up the otherwise dreary, library-like atmosphere of the courtroom— narrowed the scope of the hearing to the disputes over the experts, and to questions over how much material in the court dockets the companies are allowed to censor from public view.

In Judge Koh’s mind, the companies were asking far too much to be redacted, and she admonished the defendants’ attorneys in the hearing for possibly abusing their requests to seal documents from public view. Last week, on March 21, Judge Koh unsealed a slew of court documents and evidence to the public—including Steve Jobs’ evil “smiley” over learning that Google had fired a recruiter to please him; and a statement from former Google executive and current Facebook COO Sheryl Sandberg, in which she had testified that while working at Google up through early 2008, she was unaware of the illegal non-solicitation agreements.

Lawyers for Google and Apple acknowledged they’d overreached in their requests to seal evidence, and Judge Koh granted them one more chance to make a more “reasonable” request on what evidence we should not be allowed to view.

Most significantly, perhaps, the defendants’ attorneys signaled that private mediation talks encouraged by the court were going well. A gray-haired attorney for Google seemed to over-dramatize how understated his optimism for a settlement was, barely suppressing a smile and shifting on his feet as he told Judge Koh,

“The mediation is making progress.”
The plaintiffs’ attorneys’ response was only to say that they were very pleased with the appointed mediator. It's clearly been in the defendants’ interests to have this case shut down before more damaging revelations come out in the trial slated to begin at the end of May.

Before wrapping up the hearing, Judge Koh asked a handful of questions to the attorneys. The first question, interestingly enough, was a question PandoDaily had raised the week before: Why did the plaintiffs choose to sue only the seven firms—Apple, Adobe, Google, Intel, Intuit, LucasFilm and Pixar— when internal Google and Apple documents show that the wage-theft cartel included dozens more companies.

The attorney for the plaintiffs answered that they had the same reasons as the Deparment of Justice’s antitrust division when it chose to focus on prosecuting the same seven tech firms: the preponderance of evidence in emails and communications between the CEOs of and executives of these companies, evidence which the plaintiffs have argued proves an “overarching conspiracy.”

The judge seemed satisfied with that answer.

At another point in the oral arguments, Judge Koh singled out University of Chicago economics professor Kevin Murphy’s value as an “expert.” As I wrote earlier, Dr. Murphy is a free-market U Chicago economist who lent his name to a restaurant industry front group run by the “Dr Evil” of public relations, Rick Berman. Murphy is also Big Tech’s go-to “expert” whenever they get in trouble with the Department of Justice for violating antitrust law.

Judge Koh repeatedly complained about Murphy’s “expert” testimony consisting of twenty paragraphs which she described as “just a regurgitation” of the companies’ lawyers’ arguments against the class action lawsuit.

“I don’t see any expert value,” Judge Koh said.

She wouldn’t be the first to come to that conclusion.

The hearing ended in less than two hours without a summary ruling.

* * * *

Around 24 hours later -- Friday afternoon -- Judge Koh made her ruling: she was denying the final attempt by Apple, Google, Intel and Adobe to have the class action case tossed out. The full ruling is below.

The lawsuit goes forward. Trial begins May 27.

Correction: An earlier version of this article contained an incorrect trial date and also incorrectly identified the plaintiffs as sitting in the jury box.

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14-3-28 [771] ORDER by Judge Lucy H. Koh Denying Motions for Summary Ju...

[Illustration by Brad Jonas for Pando]