In re High-Tech Employee Antitrust Litigation
289 F.R.D. 555
N.D. Cal.2013Background
- This is an antitrust class-certification ruling arising from a consolidated action against Adobe, Apple, Google, Intel, Intuit, Lucasfilm, and Pixar.
- Plaintiffs seek to certify a nationwide All-Employee Class (and an alternative Technical Class) alleging bilateral anti-solicitation agreements to suppress compensation and mobility.
- Plaintiffs rely on documents (CEO emails, Do Not Call lists) and DOJ findings describing broad anti-solicitation agreements among defendants.
- Defendants do not dispute Rule 23(a) prerequisites but contest predominance under Rule 23(b)(3) and class-wide damages/impact.
- The court grants leave to amend, denies in part and grants in part, and denies several motions to strike, with a focus on class-wide impact and damages methodologies.
- The court ultimately finds plaintiffs have not satisfied predominance for the proposed classes at this stage but may do so with further discovery and amended proof.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether predominance under Rule 23(b)(3) is satisfied. | Plaintiffs argue common impact proofs show class-wide injury. | Defendants contend impact is individualized and not class-wide. | Not satisfied at this stage; leave to amend granted. |
| Whether a class-wide damages model is feasible. | Dr. Learner provides a conduct regression to estimate aggregate damages. | Defendants challenge the regression's validity and require individualized damages. | Plaintiff shown methodologically plausible for class-wide damages but not conclusively proven; amendment allowed. |
| Whether common antitrust liability can be proven with common proof. | Conspiracy and per se unlawful restraints can be shown through common evidence. | Liability may require individualized inquiry depending on market effects. | Liability supported by common issues for purposes of certification, but class-wide impact remains unresolved. |
| Whether the All-Employee Class or Technical Class should be certified. | Both classes capture broad injury from anti-solicitation agreements. | Very broad definitions risk including unharmed individuals and defeat predominance. | Not certified in current form; leave to amend. |
| Whether class certification should be granted with leave to amend given discovery post-hearing. | Additional evidence may establish predominance. | Late discovery should not cure deficiencies. | Leave to amend granted. |
Key Cases Cited
- In re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 291 (N.D. Cal. 2010) (rigorous analysis required; common proof must be plausible and tied to liability)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (U.S. 2013) (damages methodology must be tied to liability theory; not automatic certification)
- Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U.S. _, 133 S. Ct. 1184 (U.S. 2013) (rigorous Rule 23 analysis; shared questions must predominate)
- In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6 (1st Cir. 2008) (antitrust impact may require class-wide proof to satisfy predominance)
- In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (impact may be critical to predominance; common proof requirement)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (commonality and predominance principles in class actions)