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SAN FRANCISCO — After years
of legal skirmishes, four leading Silicon Valley companies are scheduled to go
on trial next month on claims of conspiring to keep their employees down.
A 43-year-old programmer
who helped set in motion a class-action lawsuit against the companies and
became one of its five class representatives will not be present in the San
Jose courtroom. He was shot and killed by the police last December.
The programmer, Brandon
Marshall, died in circumstances that remain murky. He was agitated and
combative, escalating a confrontation with sheriff’s deputies by assaulting
one, who shot him in the chest.
Mr. Marshall’s death is
just one of many ways in which the case has shaped up to be a Silicon Valley
drama unlike any other.
The antitrust lawsuit pits
64,613 software engineers against Google, Apple, Intel and Adobe. It accuses
the companies of agreeing not to solicit one another’s employees in a scheme
developed and enforced by Steven P. Jobs of Apple. In their drive for control,
the companies undermined their employees’ opportunities to get better jobs and
make more money, the court papers say.
Settlement talks have accelerated and
people close to the case say that barring a last-minute snag, a deal is
imminent.
The companies certainly
have good reasons to make the case disappear. They do not want to open
themselves up to weeks of damaging testimony replete with emails and other
evidence the plaintiffs plan to present, many of which have already been made
public and been chewed over by the press.
The plaintiffs say the lost
wages in the case add up to $3 billion. If a jury agreed, that sum would be
tripled under antitrust law. Three smaller defendants settled last year for $20
million, but that was before the suit won the all-important class-action
certification.
But in case there is indeed
a trial, the remaining defendants have aggressively tried to control what
information would be presented. In a recent court filing, for example, the
companies asked that any testimony about Mr. Jobs’s volatile personality be
excluded.
For the defendants, these
tactics are part of a difficult exercise in public relations. A spokesman for
Intel said the company did not believe it had done anything illegal.
Representatives for the other three companies declined to comment.
For the plaintiffs, though,
the stakes are personal.
Mr. Marshall’s family,
lawyers and employer declined to talk about him, and it is not clear if there
is any direct connection between his mental state and the burden of being an
engineer challenging the titans of his industry. He had once worked at Adobe,
which formed the basis for his suit.
At the time of his death he
was working at Roku, the streaming video service, based in the Silicon Valley
community of Saratoga, Calif. Media reports about his death did not mention his
role in the class action.
According to the Santa
Clara County sheriff’s office, emergency personnel and deputies were called last
Dec. 10 about a distressed man who appeared possibly suicidal. As Mr. Marshall
talked to the deputies, he pulled out a five-inch metal spike and hit one of
them. Even after Mr. Marshall was shot by that deputy, the sheriff’s office
said, he was combative and had to be restrained. The deputy who was struck and
another deputy were treated at a hospital and released.
Michael Devine, another of
the class representatives, said in an interview that Mr. Marshall had argued
with people on social media about the case. “You know how nasty and abusive
folks get in online comments,” Mr. Devine said. “It apparently really hurt him.”
Antitrust class actions are
rarely so personal or bitter.
“Most antitrust class
actions are commercial cases about unthrilling things like grain prices,” said
William B. Rubenstein, a Harvard Law professor and the author of a leading
treatise on class-action law. “They tend not to involve heartfelt evidence
about people’s lives.”
None of the remaining class
representatives seem to fit the stereotype of the swaggering tech worker,
driving up in his Lamborghini to displace humble workers from their homes and
neighborhoods. They have filed declarations with the court outlining what they
call “reasonable fears of workplace retaliation.”
Lawyers for the defendants
took lengthy depositions from the five representatives, and subpoenaed their
personnel files from former jobs. One plaintiff said documents were sought from
nine of his previous employers.
The defendants used this
information to accuse some of the class representatives of falsifying their
qualifications when seeking new employment, including misrepresenting dates of
previous jobs in one case and inflating a previous salary by 15 percent in
another.
Daniel Stover, who worked
for three years for Intuit, one of the companies that settled last year, wrote
in a recent filing, “I have taken substantial risks in my own career by
stepping forward. I took the risk that other high-technology companies will not
hire me or that clients might not want to work with me.”
He
added, “That risk will continue throughout my career.”
Mr. Devine, who worked at
Adobe and is now a freelance mobile phone developer, said the case “has been incredibly
stressful to me.”
The four remaining class
representatives and Mr. Marshall’s estate are eligible for incentive awards for
their public role in the case if there is a victory or settlement. Any payments
would require court approval.
In a region where wealth is
measured in billions and a million dollars is required to buy a modest house,
the awards would probably not be much. From the initial three settlements for a
total of $20 million, the lawyers have asked for incentive payments of $20,000
for each class representative. (They have asked for $5 million for themselves,
a standard percentage in these cases.)
Still, the 46-year-old Mr.
Devine said he had no regrets.
“It makes me angry when the
system is gamed,” he said. “I want to know the people I’m doing business with
and working for are playing by the rules. If everyone’s cheating, what do we
have?”
Rules, however, can be
subject to negotiation. The defendants would like rules at trial that greatly
limit what the jury hears. In particular, they say they do not want any
evidence introduced that shows Mr. Jobs, who died in 2011, as “mean” or “a
bully.”
“Free-floating character
assassination is improper,” the defendants assert.
They also are asking that
numerous other topics be banned. They say any mention of a Justice Department
investigation into hiring practices in Silicon Valley would “confuse” the jury.
That investigation, which served as an inspiration and impetus for the current
suit, ended when the companies promised to follow employment laws.
The defendants do not want
jurors to hear that Google and Apple, in particular, are two of the most
financially successful companies in the world, because that might encourage a
jury to award a larger sum. And citing a 1940 Supreme Court ruling that
“appeals to class prejudice are highly improper,” they do not want the wealth
and compensation of the companies’ management to be mentioned, either.
Last week, lawyers for the plaintiffs filed a response
characterizing these requests as overly broad or simply ridiculous. They said,
for instance, that it would be difficult to show Mr. Jobs as controlling a
conspiracy without also shedding some light on his personality. If jurors then
concluded that the Apple chief was a jerk, this would just be tough luck.
