U.S. District Judge Lucy Koh, Northern District of California (Jason Doiy / The Recorder)
SAN JOSE — With a trial date approaching, lawyers in the Silicon Valley “no poach” class action battled Thursday to show the other side’s expert witnesses are anything but.
U.S. District Judge Lucy Koh, presiding over the hearing in San Jose federal court, didn’t seem thrilled with witnesses offered by either side.
“I just don’t see a lot of expertise here,” she said, adding, “Both sides are summarizing a lot of the evidence and passing it off as expert opinion.”
Last October, Koh certified a class of some 64,000 employees who claim they were harmed by illegal agreements among Google Inc., Apple Inc., Adobe Systems Inc., Intel Corp. and other technology companies to not recruit each other’s employees. Intuit, Lucasfilm and Pixar have already settled for a combined $20 million and a trial for the remaining four defendants is set for May.
Koh wrapped up the hearing with the promise she would rule very soon on a motion for summary judgment filed by the defense, and the Daubert motions filed by both sides. The defense strategy hinges on discrediting a key plaintiff witness, UCLA economics and statistics professor Edward Leamer.
In a 120-page report filed in 2012, Leamer sought to prove the antirecruitment agreements among the defendants did, in fact, suppress employee compensation. He argued his analysis also can quantify by how much employee compensation was reduced.
Defense counsel not only contend that Leamer’s research is flawed and should be discarded, but argue that without Leamer, plaintiffs’ entire case falls apart.
“Without Dr. Leamer’s expert report and testimony, plaintiffs have no evidence of classwide impact or damages and cannot prove the essential elements of their antitrust claim,” counsel for Google, Apple, Adobe and Intel wrote in a joint motion for summary judgment.
Leamer claims each plaintiff was affected equally by every agreement that made up a web of alleged antirecruitment pacts, an assertion which makes no sense, according to O’Melveny & Myers partner George Riley, who represents Apple. An Apple employee could not be affected by an agreement between Intel and Google, he told Koh.
“There’s no rational basis for that at all,” Riley said. “It makes no sense.”
Koh asked plaintiffs attorneys to answer the questions raised by the defense, and appeared to listen intently to their answers. Arguing for plaintiffs, Lieff Cabraser Heimann & Bernstein partner Brendan Glackin defended Leamer.
“He’s putting his professional reputation on the line here behind these statements,” Glackin said. “He doesn’t just earn money by helping defendants.”
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