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Judge Denies Class Action Status In Tech Workers' Lawsuit 103

Posted by timothy
from the employment-at-will dept.
We've mentioned a few times the "gentleman's agreements" which some of the biggest names in Silicon Valley used to reduce the risk of employee poaching. walterbyrd writes "This comes from the same judge who awarded Apple $1 billion from Samsung. 'A federal judge on Friday struck down an effort to form a class action lawsuit to go after Apple, Google and five other technology companies for allegedly forming an illegal cartel to tamp down workers' wages and prevent the loss of their best engineers during a multiyear conspiracy broken up by government regulators.'" The lawsuit itself is ongoing (thanks to a ruling last year by the same judge); it's just that the plaintiff's claims cannot be combined.
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Judge Denies Class Action Status In Tech Workers' Lawsuit

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  • by colinrichardday (768814) <colin.day.6@hotmail.com> on Saturday April 06, 2013 @01:24PM (#43379595)

    But they're mere workers.

  • Don't forgot (Score:3, Insightful)

    by rsilvergun (571051) on Saturday April 06, 2013 @01:36PM (#43379661)
    Judges are part of the ruling class. Oh wait, America doesn't have class, right? And it's certainly not true that 95% of political donations come from .05% of Americans, right?
    • by dkleinsc (563838)

      Oh wait, America doesn't have class, right?

      Dennis: "You're fooling yourselves. We're living in a dictatorship, in which the working classes ..."
      Old Woman: "Oh, there you go bringing class into it again."
      Dennis: "But that's what it's all about. If only people would see."

      • by BonThomme (239873)

        strange men, dressed in flowing robes, distributing justice, is no basis for a system of legal review

    • Re:Don't forgot (Score:4, Informative)

      by lennier1 (264730) on Saturday April 06, 2013 @04:31PM (#43380579)

      The judge in question is Lucy Koh. That pretty much says it all.

    • by poetmatt (793785)

      I don't get how this even applies? The judge didn't even rule on $1B from samsung, which wasn't even awarded. The only direction apple's heading towards earning is zero, or less than what it stands at now - assuming that even sticks. While the premise (losing out on class action) sucks, it and simply being the same judge has no relation to anything involving the samsung vs apple case, of which apparently the submitter can't even get information right.

      Not only that, but what exactly is a "Ruling class" and

  • We all know what happens when prices go up without bound. Think about it. Programmers jumping around from job to job while their salaries keep soaring. Eventually they're asking for so much money that companies decide to just not hire them. Bring in more H1-B's, Salaries plummet, and in the end we all lose... I think it's best to keep control and prevent an 'engineers market flash crash'.
    • Re: (Score:2, Funny)

      by Anonymous Coward

      Programmers jumping around from job to job while their salaries keep soaring.

      You're right! That behaviour is explicitly reserved for the C-level execs, not some uppity peon programmers...

    • by Anonymous Coward

      Programmers jumping around from job to job while their salaries keep soaring. Eventually they're asking for so much money that companies decide to just not hire them.

      That's not true where I live. Maybe out in CA - which I think the tech market in Silicon is in it's own little World.

      Salaries peaked in the late 90s- early - '00s. And that happened to be when :

      Globalization really took off.
      Changes in technology. Most of work I had in the late 90s was distributed systems on Unix/Linux/Windows - writing the middle ware (in C++), the data transfer to RDBMs, and other stuff that folks just don't do anymore.

      Really, who writes their own middleware anymore? They go with a soluti

      • by Lumpy (12016)

        "Really, who writes their own middleware anymore? "

        The military or anyone that wants to not be exploited and hacked within seconds.

        • Re: (Score:2, Informative)

          by Anonymous Coward

          "Really, who writes their own middleware anymore? "

          The military or anyone that wants to not be exploited and hacked within seconds.

          That makes for nice Slashdot rhetoric, but it's not true in reality. The record business being done by those solution companies and the almost complete disappearance of middle ware develop jobs proves it.

          I know a manager that stopped posting development jobs because they would get over a hundred qualified applicants. They just ask their current employees for referrals now.

          This programmer shortage is only in the minds of a very loud minority and isn't reality.

      • by fuckface (32611)

        I'd love to see their faces when you tell half of your programming staff that they get paid less than their immediate peers because they chose to live in a less hip ZIP-code. That doesn't go over well.

      • I think if the Silicon Valley companies look outside of their little World and realize that, for one, their technology isn't so groundbreaking after all, and for another, maybe could move development operations to let's say, Metro Atlanta where Lockheed just canned a bunch of really talented guys?

        Hear, hear!

        It amazes me how many people in SV consider themselves cosmopolitan, or even "global citizens", yet are in fact incredibly insular and provincial. It's as though they have world maps with only two places marked on them: SV and India.

        Get a clue folks. SV is but one small part of America, and there are many others with substantial amounts of tech talent. If you have trouble hiring good people at a reasonable price, instead of screaming for more H-1B's, take a look at Google Maps for some of tho

    • by BonThomme (239873)

      you know, I thought the same thing while the .com bubble was rocking. In retrospect, I say make hay while the sun shines and extract as much money from them when you can while you can. I can assure you they will afford you that complementary courtesy when the bubble turns, not matter how you behave when it's your turn.

  • Don't Be Evil (Score:5, Informative)

    by TubeSteak (669689) on Saturday April 06, 2013 @01:45PM (#43379717) Journal

    Documents filed in the lawsuit indicated executives knew they were behaving badly. Both [Co-Founder and Executive Chairman of Google] Schmidt and Intel CEO Paul Otellini indicated that they were worried about the anti-recruiting agreements being discovered, according to declarations cited in Koh's ruling. Nevertheless, Schmidt still fired a Google recruiter who riled Jobs by contacting an Apple employee, according to evidence submitted in the case.

    Well that seems a bit evil, wouldn't you say?

    • Re:Don't Be Evil (Score:4, Insightful)

      by macbeth66 (204889) on Saturday April 06, 2013 @02:02PM (#43379801)

      Ah, I see someone beat me to it. Of course, you and/or I will be modded down for saying this.

      I expect this sort of behavior from the Apples and Microsofts of the tech industry. And as a prospective employee, I know what to expect. But Google wants to put themselves up as morally superior to these companies. In my opinion, this makes them worse.

      As for the case, okay, they can't call it a class action suit. But they can pool their money, hire the best legal team money can buy, hire a good PR company that will inundate the media with David and Goliath stories and find a candidate with the best case. Try this thing in the press. Cockroaches hate the light of day. Make then scurry.

      • by Anonymous Coward

        Try this thing in the press.

        It may be hard to get the general public's sympathy for the poor exploited workers who are dissatisfied with making only twice what ordinary people do.

        • It may be hard to get the general public's sympathy for the poor exploited workers who are dissatisfied with making only twice what ordinary people do.

          Not at all, and I've successfully tried it. The popular perception of programmers, engineers, etc. is of people who've done reasonably well through talent, education and work. It's hardly the 0.01% that own the government, and the general public knows that. People who aren't quite as successful financially generally don't resent it, and maybe have a cousin who's done it or a kid they hope will do it. The general public still rightfully categorize programmers, etc. who work for a living and are subject to ge

      • by PopeRatzo (965947)

        But they can pool their money, hire the best legal team money can buy, hire a good PR company that will inundate the media with David and Goliath stories and find a candidate with the best case.

        Why would you think this would matter? Nobody's going to boycott Google. None of us are their customers, remember? And I'm betting the stock market likes the idea of pushing down wages.

        There's nothing better for oligarchs than 10% unemployment, because that makes just about any hiring environment a monosopy.

        If we

        • by macbeth66 (204889)

          The issue isn't about a boycott. It is about bringing a successful lawsuit against the companies involved.

        • If we had a Justice Department that was worth a damn, there would be criminal anti-trust cases brought against Google, Apple, Microsoft, etc like right now.

          If we had a Justice Department worth a damn, those cases would have to take a back seat to the criminal fraud cases in the finance industry. Search on William K. Black for a earful on that. He helped prosecute over 1000 successful criminal fraud convictions arising from the S&L crisis. Similar prosecutions in the Great Recession: zero.

          • by PopeRatzo (965947)

            Search on William K. Black

            He's one of the best voices on the financial industry.

            Coincidentally, I was just reading a New Yorker article from back in September/October (before the election) on how the financial reform bill was blown up by Wall Street lobbyists, and William Black is quoted extensively.

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      I encountered the same thing as a Symantec employee. I had accepted an offer to jump ship and go to McAfee and was about to give notice when I got a call from a mid-level manager who openly stated that they had a gentleman's agreement not to hire each other's employees. Keep in mind I was not poached but had approached McAfee for a completely different position than the one I was currently serving at Symantec.

    • That is extremely evil, even if Google no longer uses or advertises their original mantra of "Don't Be Evil". Their having had such a mantra as a motto, and not having it now anymore is public renunciation of not being evil which IMHO is equivalent to "Yes, Be Evil!!!" as a positive declaration. So there, I've said it. Google's new motto must be "Yes, Be Evillll!!!" (add a laugh, or cackle, as needed), as it has been proven linguamathacontextually equal. QED. Feynman. Fine Women. Help, I'm drowning i
  • by onyxruby (118189) <{onyxruby} {at} {comcast.net}> on Saturday April 06, 2013 @02:20PM (#43379899)

    The judge made one truly epic level bad decision with the Apple Samsung case, is anyone surprised she did the same thing with another case? The whole situation is deplorable and needs a significant legal remedy to prevent it from ever happening again.

    • The judge made one truly epic level bad decision with the Apple Samsung case, is anyone surprised she did the same thing with another case? The whole situation is deplorable and needs a significant legal remedy to prevent it from ever happening again.

      What "truly epic level bad decision"? And what appellate or Supreme Court precedents can you point to as evidence of her error? Or is this just really "something happened that you disagree with"?

      For example, if you're referring to the Hogan thing where Samsung may have concealed evidence of potential bias until they had a decision against them, that's not going to be enough. Or if you're referring to Apple not getting a preliminary injunction since money damages could be enough to compensate them, then tha

      • by jedidiah (1196)

        > What "truly epic level bad decision"?

        The obvious conflict of interest of the patent troll wannabe serving as jury foreman. The moment he started he started running his mouth off, the whole thing should have been declared a mistrial.

        • > What "truly epic level bad decision"?

          The obvious conflict of interest of the patent troll wannabe serving as jury foreman. The moment he started he started running his mouth off, the whole thing should have been declared a mistrial.

          He didn't run his mouth off until after the trial was over and judgement was settled. Are you saying juries should never be able to talk about their experience after the fact? How does that not violate their first amendment rights?

          As for the potential conflict of interest, as I said, Samsung had notice of that well in advance. They can't keep that as an ace up their sleeve and only play it if the jury finds against them. Contrary to popular belief, trials don't work like they do on TV or in the movies: you

          • by dwpro (520418)

            From what I could tell, the jury foreman lied by omission when he was being questioned about his previous relationships with Samsung/Seagate. Regardless, he should have been outed by _someone_ as having a conflict of interest in the outcome as the holder of a dubious intellectual property patent.

            • From what I could tell, the jury foreman lied by omission when he was being questioned about his previous relationships with Samsung/Seagate.

              They only asked him about Samsung. It's not clear that he knew at the time that Seagate had been bought by Samsung... But on the other hand, Samsung should have been able to do a simple search through their files and say "hey, we sued this guy once... maybe we shouldn't have him on the jury?" Additionally, Samsung's lawyers should have done a simple records search to see if he had ever been in court before, since at the very least they'd want to know if he was a juror in a related trial, if he was involved

              • by dwpro (520418)

                They only asked him about Samsung

                That's not correct. Samsung brought this up in their appeal.

                Jury foreman Velvin Hogan failed to disclose truthfully during voir dire that he had sued and been sued by his former employer, Seagate, despite the Court’s express question asking him whether he had ever been a party to any litigation.

                In the jury selection Hogan failed to mention the seagate lawsuit, but rather deflected by citing a smaller lawsuit that wasn't actually brought to court. link to pdf of questioning [groklaw.net]

                So should no one who's an inventor on a patent be involved in a patent trial?

                You're right that we shou

                • They only asked him about Samsung

                  That's not correct. Samsung brought this up in their appeal.

                  Jury foreman Velvin Hogan failed to disclose truthfully during voir dire that he had sued and been sued by his former employer, Seagate, despite the Court’s express question asking him whether he had ever been a party to any litigation.

                  In the jury selection Hogan failed to mention the seagate lawsuit, but rather deflected by citing a smaller lawsuit that wasn't actually brought to court. link to pdf of questioning [groklaw.net]

                  Maybe I misunderstood your original statement... You said "From what I could tell, the jury foreman lied by omission when he was being questioned about his previous relationships with Samsung/Seagate." He was questioned about whether he had any relationships to the parties in the case, Samsung and Apple, which is what I thought you were referring to. He was never questioned about his relationship with Seagate. From the opinion [appleinsider.com] denying juror misconduct:

                  Despite [the Seagate/Samsung] relationship, counsel for Samsung did not ask Mr. Hogan about this relationship with Seagate, and did not seek to elicit any information about whether that relationship might influence Mr. Hogan’s view in any way.

                  He was also asked if he had been in any litigation, and

                  • by dwpro (520418)

                    Yes, I definitely should have phrased my first reply differently and checked the actual history, apologies for phrasing that was misleading from my intent.

                    I believe the crux of the issue is that Hogan _should_ have mentioned the prior lawsuits when questioned in voir dire. I don't blame the judge, and have mixed feelings about Samsung's culpability if Hogan withheld information after being explicitly asked. Kudos for the Boston Legal reference, I really liked that show.

                    Hogan's patent, in my admittedly ama

                    • Yes, I definitely should have phrased my first reply differently and checked the actual history, apologies for phrasing that was misleading from my intent.

                      I believe the crux of the issue is that Hogan _should_ have mentioned the prior lawsuits when questioned in voir dire. I don't blame the judge, and have mixed feelings about Samsung's culpability if Hogan withheld information after being explicitly asked. Kudos for the Boston Legal reference, I really liked that show.

                      No worries. Yeah, Hogan probably should have mentioned the prior lawsuits. The problem is that bit about Samsung's culpability... If they really and truly had no way of knowing about it, then they're not penalized and could have raised it and gotten a mistrial. For example, if Hogan had changed his name since that trial, particularly in another state, and so they couldn't just search for "Hogan" in their records and in the court records.

                      Basically, what it comes down to is that, if Samsung really didn't kno

    • Not exactly sure if this was a completely terrible decision. There may be evidence that the behind doors tampering wasn't equally used against all employees. Forming a class action is great if there is a structural problem and most are impacted to a similar degree. The granting of class action makes it more difficult for those who suffered the worst to get appropriate compensation, because first they must demonstrate they are not covered by the class action before they are allowed to take their own. The
  • by Anonymous Coward

    ROFL. What a fanboi dilemma.

  • by Anonymous Coward on Saturday April 06, 2013 @02:48PM (#43380051)

    A computer security company called Accuvant in Colorado has a neat little 'no hire' agreement with over 70 partner companies. Including Symantec, McAfee, Palo Alto and other big names in computer security as well as other consulting companies like Dyntek. Essentially if you work for them you cannot be hired by any of those companies. There is no extra pay to the employee or other compensation for it as well. They use that as a means of limiting what they pay their employees. Of course you don't hear about it until after you've been hired and been brought into the system. At that point you find a lot of the common career progression paths immediately blocked by their agreement.

    • by Anonymous Coward

      If this is true, then sue the f*&k out of them. You will almost certainly make more from doing that than you ever will be working there 60 hours a week.

      If it is really as pervasive as you say, there should be GOBS of evidence around to throw these jackasses under the bus.

  • by PopeRatzo (965947) on Saturday April 06, 2013 @02:50PM (#43380063) Homepage Journal

    Google and five other technology companies for allegedly forming an illegal cartel to tamp down workers' wages and prevent the loss of their best engineers during a multiyear conspiracy

    John Galt is a sociopath.

    • by jdogalt (961241)

      > Google and five other technology companies for allegedly forming an illegal cartel to tamp down workers' wages and prevent the loss of their best engineers during a multiyear conspiracy

      John Galt is a sociopath.

      John Galt is a fictional protagonist from Ayn Rand's Atlas Shrugged, who would probably defend leisse fairre (sp?) cartel style intra-corporate collusion in cases such as this. Even if the 'exploited' class was say, of a specific race or gender etc, instead of high-tech workers here. The theory being that somehow in the big big ol picture, the system of self motivated parts would punish such non-optimal strategies. OTOH, Galt was somewhat conflicted, because despite being such an advocate, he basically c

  • Next time, vote independent or socialist.

  • by PhamNguyen (2695929) on Saturday April 06, 2013 @03:30PM (#43380251)

    No poach agreements are just another form of price fixing. While companies may be on friendly or less than friendly terms, as long as they are separate companies, they have no right to enter into price fixing agreements. These agreements keep wages below market rates. Someone who might earn $300,000 a year in a free market might only earn $250,000 because other companies won't make competing offers with their current offer.

    While losing employees causes a lot of disruption to a company, potential loss of IP, etc. this is just part of the game. All monopolies and cartels can offer plausible sounding reasons why the "order" that they impose on the market is better than competition, but as a society we decided long ago that the free market works better. So it doesn't matter what other benefits these companies claim no-poach agreements have, they are still illegal price fixing.

    The only exception I can think of is a prohibition on people who move from company A to company B, contacting their co-workers in company A, in their capacity as an employee of company B. This could be considered in improper use of that person's professional contacts at company A. However a recruiter using public information to contact an employee at another company should always be not only allowed, but encouraged.

    • Just wait till some GOP hack claims that since corporations are people, they have the right to assemble and form unions :P
    • The only exception I can think of is a prohibition on people who move from company A to company B, contacting their co-workers in company A, in their capacity as an employee of company B. This could be considered in improper use of that person's professional contacts at company A.

      I think I had to sign a non-recruitment agreement when I left a company in 1999. Think it was valid for 2 years. Not sure if it was valid or not, I just signed because I was young and didn't care.

      • I would probably refuse to sign anything when leaving a company. What right to they have to impose any conditions on you, since you are free to leave any time anyway? But the rules I had in mind were when a company decides not to let its own employees contact their former colleagues on its behalf. This is a form of non-poach agreement, but for the reasons I gave, I don't think it's necessarily wrong.
        • Well I kinda see both sides.
          You don't want a manger who leaves, to recruit all his former employees into a new company. This can hurt the company losing the manager as they'll also lose the rest of the group with him.
          At the same time the new company doesn't want some new manager to build his own loyal dynasty from day 1.
          Ironically this kind of stuff happens all the time within a company.

          Though restricting either case should be illegal.
    • The only exception I can think of is a prohibition on people who move from company A to company B, contacting their co-workers in company A, in their capacity as an employee of company B. This could be considered in improper use of that person's professional contacts at company A.

      Why?

  • by Anonymous Coward

    If recent political events have not impacted any of us enough to change to social perception of "tech workers" as they call us I don't know if anything ever will. If this is the thanks we get for collectively making it possible for our President to charge into a second term using sophisticated analytic techniques encompassing social media, dynamic data storage, and lightning quick responsiveness we should all feel completely bamboozled. All of the hours we spend contributing to the development cycles of the

  • The system doesn't have to be like this, we can restructure the game to reward cooperative behavior between the parties using game theory. See my sight for details on a new ADR process that utilizes these insights. We're just getting started, donations and other assistance is appreciated.

    http://ibmemployeelegalservices.com/ [ibmemploye...rvices.com]

    Nikolas J. Britton
    Executive Director
    IBM Employee Legal Services, Inc.
    nbritto@ibmemployeelegalservices.com

    (563) 564-3546
    8760A Research Blvd #151
    Austin, TX 78758-6420

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