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 Girard represents a former Adobe engineer who objected to a proposed
$324.5 million deal, aimed at resolving an antitrust class action
that alleged Apple, Google, Intel and Adobe <ADBE.O> conspired to
refrain from soliciting each other's employees to avert a salary
war.
Late last week, U.S. District Judge Lucy Koh in San Jose, California
said the proposed settlement amount was not enough. Koh's ruling
mirrored the arguments Girard made against the deal and may indicate
that she will eventually approve an amount that is not vastly higher
than the one she rejected.
Girard usually represents consumers and shareholders far from the
tech world, but now he has some leverage in one of the most closely
watched cases in Silicon Valley. Asked if he will participate in any
negotiations, Girard said "we would certainly expect to be
included."
In an exchange with Girard in June, Koh had asked him how much
"short of the mark" the $324.5 million settlement was, and his
response: "I don't think we're talking about multiples of this
number."
In her ruling, Koh said the latest deal "would need to total at
least $380 million" to match a related deal involving Disney last
year.
The companies in the case have not said whether they plan to return
to the table. The next hearing is not until Sept. 10, at which point
they will likely either tell Koh they want to continue negotiating
or set a trial date.
Representatives for Apple, Intel and Adobe declined to comment on
Monday, while Google did not immediately respond to inquiries.
Joseph Saveri, an attorney for the class of tech workers, said his
team "will continue to work hard moving forward in the case."
NOT LOOKING FOR A FAST BUCK
Girard is no stranger to many of the attorneys in the case: he was
once a partner at Lieff Cabraser Heimann & Bernstein, one of the
elite plaintiff firms which reached the $324.5 million deal. Girard
has a 19-lawyer firm, Girard Gibbs, and has worked alongside Lieff
Cabraser in other class action cases.
Girard, who was referred the case by another lawyer, said it's "a
genuine concern" to litigate against former colleagues. But at the
hearing in June, he made clear that his objection to the settlement
was not the often-raised concern that plaintiffs' lawyers are
settling low to make a fast buck on attorneys fees. Those fees could
be up to 25 percent of the settlement, according to court filings,
which would have been about $81 million.
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Girard told Koh he did not believe attorneys for the tech workers
had colluded with the companies or "sold out the case." Rather,
Girard said the plaintiffs had simply overstated the risks of going
forward given the strength of their evidence.
In her ruling, Koh praised the plaintiff lawyers as "zealous
advocates." Like Girard, the judge focused on the "substantial and
compelling evidence" plaintiff lawyers had been able to uncover.
The case was based largely on emails in which Apple co-founder Steve
Jobs, former Google Chief Executive Officer Eric Schmidt and some of
their rivals hatched plans to avoid poaching each other's prized
engineers. In one, referring to an attempt by Google to hire three
former Apple engineers for a Paris project, Jobs wrote that he would
"strongly prefer that you not hire these guys." Google scrapped the
idea.
The four companies agreed to settle with the workers in April
shortly before trial. The plaintiffs had planned to ask for about $3
billion in damages at trial, which could have tripled to $9 billion
under antitrust law.
In June, Girard told Koh that if the plaintiffs had gone to trial
and gotten a $3 billion verdict, his client Michael Devine would get
about $144,000. Under the much smaller deal Koh rejected, however,
Devine would have received $3,600.
The case is In Re: High-Tech Employee Antitrust Litigation, U.S.
District Court, Northern District of California 11-cv-2509.
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