Sheryl Sandberg, Facebook Chief Operating Officer (Jolanda Flubacher)
SAN FRANCISCO — Facebook executive Sheryl Sandberg says she turned down entreaties to enter a no-poach pact with Google similar to those at issue in a massive class action targeting several of Silicon Valley’s largest tech companies.
Sandberg, who left Google Inc. in 2008 to become Facebook’s chief operating officer, said in a sworn statement that two senior Google executives subsequently approached her with concerns about Facebook’s hiring of Google employees. However, she declined to limit recruitment or hiring of Google employees and hasn’t authorized any such agreement since, according to the declaration.
Plaintiffs attorneys submitted Sandberg’s declaration last year on behalf of 60,000 skilled workers who accuse Google, Adobe Systems Inc., Apple Inc. and Intel Corp. of conspiring not to hire each other’s employees as a way to illegally keep down wages. The document remained sealed until late Friday, when it was refiled publicly in response to a court order.
Google’s overtures to Sandberg came from top executives, including Jonathan Rosenberg, a former senior vice president of product management, and Omid Kordestani, then Google’s senior vice president for sales, according to her statement. Her lack of interest may have spared Facebook from getting drawn into a costly legal entanglement; Intuit Inc., Lucasfilm Ltd. and Pixar Animation Studios Inc. have already settled with plaintiffs for $20 million.
Sandberg’s declaration flies in the face of defense arguments that nonsolicitation agreements were necessary components of collaborations between tech companies, said plaintiffs attorney Joseph Saveri, who heads the plaintiffs team along with Lieff Cabraser Heimann & Bernstein.
“It doesn’t look like there’s any collaboration at the time between Google and Facebook,” he said. “And I think that’s a useful thing.”
U.S. District Judge Lucy Koh of the Northern District of California, who is presiding over the sweeping class action in San Jose federal court, did not consider Sandberg’s declaration when she granted class certification in October, though her order referenced escalating tensions between Google and Facebook over recruiting.
Google’s recruiting director discovered in March 2008 that Facebook had been cold-calling Google engineers and proposed contacting Sandberg to “ask her to put a stop” to the recruiting effort and “to consider establishing a mutual ‘Do Not Call’ agreement,” according to records cited in Koh’s order. Later, after losing one of many employees to Facebook, a Google executive sent an email asking, “Who should contact Sheryl [Sandberg] (or [Facebook Founder] Mark [Zuckerberg]) to get a cease-fire? We have to get a truce.”
After Facebook rebuffed Google’s overtures, the Mountain View search giant raised employee salaries 10 percent and gave out $1,000 cash bonuses—a retention strategy known as the Big Bang.
On Thursday, Koh is scheduled to hear arguments on a motion for summary judgment filed by the defense. She also will consider two Daubert motions from the defense—one of which would exclude expert witness Edward Leamer, whose research found plaintiffs were harmed by the defendants’ alleged no-poach agreements. Defense lawyers seek to exclude Leamer on the grounds that he changed his threshold for statistical significance midway through court proceedings, rendering his findings meaningless. Without Leamer’s findings, the defense argues, counsel for the plaintiffs cannot prove their clients suffered damages as a result of the defendants’ actions.
Google’s lawyers at Keker & Van Nest could not be reached Monday. A Facebook spokeswoman declined comment.
Sandberg—who rocketed to national fame with her 2013 book, “Lean In: Women, Work, and the Will to Lead”—is represented by a team from Cooley, including partners Michael Rhodes, John Dwyer and Beatriz Mejia. Though it’s not clear yet whether Sandberg will testify if the case goes to trial, her declaration has added another big name to a legal drama already captivating the Valley.
“Certainly Sheryl is a very important person in the tech community, and I think in the professional community in general,” said plaintiffs attorney Kelly Dermody of Lieff Cabraser. “So what she says, people listen to.”
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