Lawyers Get Ahead of Themselves in Poaching Suit as Plaintiff Slams Deal

There’s a certain irony that, in a suit about employees and their right to switch companies, lawyers seem to have forgotten who the boss is. The Silicon Valley anti-poaching lawsuit was filed over allegations that some of the country’s biggest tech companies, including Google and Apple, had agreed not to hire each other’s workers. The reasoning was simple enough: the companies agreed not to “poach” employees from their competitors and in return didn’t have to worry about losing their own top talent. Though they’ve always denied any such agreement existed – and the allegations date back to 2011 – several companies nevertheless found themselves facing legal action, with the suit given the go-ahead back in January.

One of the reasons class action lawsuits offer class members the right to opt out is that courts are always keen to examine the fairness of the way the suit is handled.

On the table was an estimated $3 billion in lost wages and validation for the 64,000 class members who have always argued that their rights have been infringed upon. It might seem surprising, then, that a $324 million settlement agreement was announced recently. It was certainly surprising to one of four named plaintiffs. Michael Devine has now written to the judge, U.S. District Court judge Lucy Koh, to protest the size of the settlement, and encourage the case to continue to court:

Especially surprising, though, is Devine’s explanation of why he’s only now raising objections:

Now that is an oversight. As a class representative, Devine has a right to be informed about settlements. As The State Bar of California explains:

He’s now set up a website on which he seeks alternative counsel and continues to campaign for his “day in court.”

He also points out, quite fairly, that:

The case is made more complicated because it’s a class action. Devine can’t simply fire his attorneys without the support of a significant number of the class members – something that seems unlikely and would be cumbersome to prove. Still, such protest from class representatives is incredibly rare, with The New York Times reporting that an investigation into 1,000 cases found just one percent led to a formal protest.

Essentially, it’s not clear what will happen next. Judge Koh will certainly have a lot to think about. One of the reasons class action lawsuits offer class members the right to opt out is that courts are always keen to examine the fairness of the way the suit is handled. While Judge Koh isn’t automatically legally bound by Devine’s letter, it will be hard to ignore. The suit already includes a request for $20,000 for each of the four class representatives as payment for their work, and while that wouldn’t necessarily increase if the case continued to court, Devine is described as having a “strong heart for justice” by a former girlfriend.

Is this a fight he can win? We’ll have to wait and see how the court responds. For the tech firms, meanwhile, it’s more unwanted publicity. They can continue to deny the allegations, of course, but evidence already exists that suggests at least some companies did have anti-competitive agreements. If the case goes to court, that evidence – e-mails between company bosses – will once more be examined. Do they want that? It could be worthwhile simply settling for a higher amount – proving, of course, that they haven’t already done too much damage, and can overcome Devine – and others’ – protests.