Expert Testimony Kept in Apple, Google Wage Theft Class Action Lawsuit

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U.S. District Judge Lucy H. Koh refused to exclude most of the plaintiffs’ expert testimony in the class action lawsuit accusing tech giants Adobe, Apple, Google, Intel, Intuit, Lucasfilm and Pixar of brokering unfair agreements to not to hire each others’ employees in order to keep wages down artificially.

The technology companies filed motions to both exclude the plaintiff’s expert testimony and, if that motion was successful, a motion for summary judgment to dismiss the wage theft class action lawsuit. According to the order, the plaintiffs’ expert, Edward Leamer, testified “that economic theory, documentary evidence, and multiple regression analyses were capable of showing that the anti-solicitation agreements tended to suppress employee compensation generally by preventing class members from discovering the true value of their work.” Further, “Dr. Leamer illustrated how economic theory, documentary evidence, and statistical analyses are capable of showing that this suppression of compensation affected all or nearly all class members.”

The technology companies argued that Dr. Leamer’s regression analysis was incorrect, but Judge Koh disagreed for the most part. “The Court disagrees that Dr. Leamer’s arguments constitute improper rebuttal,” the judge states. “In her report, Dr. Stiroh attacks Dr. Leamer’s use of this variable by claiming that the variable’s coefficient has the ‘wrong’ sign (i.e., negative) because the coefficient implies that as the firms are doing more hiring, the firms pay their employees less, which runs contrary to basic economic principles, and by advocating that the variable should be omitted because it wrongly ‘combines the impact of the hiring by firms with whom each Defendant has a[n anti-solicitation] agreement with the impact of hiring by other Defendants. … Dr. Leamer was entitled, in direct response to Dr. Stiroh’s opinion, to explain in detail greater than his opening report the statistical significance of this variable compared to that of the other variables and why omitting it would be incorrect.”

Judge Koh also disagreed with the defendant’s argument that “Dr. Leamer ‘introduces for the first time a justification for using real compensation as a metric in Dr. Leamer’s model instead of nominal compensation.’” According to the judge, “to exclude Dr. Leamer’s response … here would create a rule whereby experts would feel the need to include ‘vast amounts of arguably irrelevant material’ in their opening reports ‘on the off chance that failing to include any information in anticipation of a particular criticism would forever bar the expert from later introducing the relevant material.’”

Judge Koh also disagreed with the defendant’s argument to exclude Dr. Leamer’s conduct regression, pointing out “the Court … held in its October Order that Dr. Leamer’s conduct regression was ‘statistically robust,’ supported by the economic literature, and ‘capable of calculating classwide damages. … Further, numerous courts have held that regression analysis is generally a reliable method for determining damages in antitrust cases and is ‘a mainstream tool in economic study.’”

Jude Koh agreed with the defendant technology companies that “because Plaintiffs waited until after Defendants had filed their last expert report for Dr. Leamer to offer a new theory … Plaintiffs will not be allowed to ‘sandbag’ Defendants with new analysis that should have been included at the very least in Dr. Leamer’s opening merits report.”

The judge also denied the technology companies’ motion for summary judgment. This is the second time in recent months that Judge Koh has rejected the tech companies’ efforts to dismiss the class action lawsuit.

The plaintiffs are represented by Lieff Cabraser Heimann & Bernstein LLP and Joseph Saveri Law Firm Inc.

The Tech Worker Anti-Poaching Class Action Lawsuit  is In re: High-Tech Employee Antitrust Litigation, Case No. 11-cv-02509, U.S. District Court, Northern District of California.

If you or someone you know did not receive all the money they earned, legal options are available to you. Learn more and get a free consultation regarding a claims eligibility at the Wage & Hour Unpaid Overtime Class Action Lawsuit Investigation. Experienced legal professionals are able to determine if you have a case. You could receive back pay as well as penalties. Don’t delay — the statute of limitations under the Fair Labor Standards Act is two to three years, depending on the state, so act now.

UPDATE: Google, Apple, Intel, and Adobe reached a class action settlement agreement on April 24, 2014.

UPDATE: The high-tech employee class action settlement has paid out! Checks were mailed the week of December 21, 2015. If you received a check, let us know in the comments. Congrats to everyone who got paid!