Kelly M. Dermody, Lieff Cabraser Heimann & Bernstein partner (Hillary Jones-Mixon)
SAN FRANCISCO — Turning back the pleas of four Silicon Valley giants, the Ninth Circuit refused Tuesday to intervene in a class action that alleges the companies conspired not to poach each others’ employees.
In a brief order, the court turned down Google, Apple, Intel and Adobe Systems’ petition for interlocutory review of U.S. District Judge Lucy Koh’s order last October certifying a class of some 64,000 employees.
Koh concluded that plaintiffs led by Lieff Cabraser Heimann & Bernstein and the Law Offices of Joseph Saveri presented ample evidence that the tech giants “eliminated a key tool of recruitment, cold calling,” and that the no-poach agreements had a common impact across the entire class of employees.
Intuit, Lucasfilm and Pixar have already settled out for a combined $20 million, which Lieff Cabraser has said is just a small fraction of the exposure.
Backed by the U.S. Chamber of Commerce, the four tech titans—represented by Keker & Van Nest, Jones Day, O’Melveny & Myers and Mayer Brown—argued to the Ninth Circuit that Koh had certified an unwieldy class that doesn’t meet Rule 23 standards under Walmart v. Dukes and other recent Supreme Court decisions.
“The certification order rested on the theory that a raise for one or some employees would ‘ripple’ throughout the class, but undisputed evidence shows that each class member’s compensation is determined by highly individualized factors unsuited for classwide adjudication,” they argued.
The U.S. and California Chambers of Commerce, along with the National Association of Manufacturers, filed an amicus curiae brief saying the decision will “dramatically increase their members’ exposure to class action lawsuits.”
But interlocutory review of class certification orders is discretionary at the Ninth Circuit, and the court declined to exercise it. The court provided no explanation other than citing its leading case on class cert orders. It says they will be reviewed only when they effectively sound a “death knell” for the losing party, raise an unsettled issue of law or are “manifestly erroneous.”
Lieff Cabraser partner Kelly Dermody said the order validated the enormous effort—including some 70 depositions and more than a million documents—put forward by her team and Judge Koh. She said she is looking forward to the May 27 trial date.
Will the case really go all the way to trial? “It’s hard to say,” Dermody said. Antitrust litigation is “an area of the law where there have been a lot of trials, so it wouldn’t surprise me.”
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