By Marisa Kendall, The Recorder

SAN FRANCISCO — Michael Devine, former named plaintiff in the “no poach” antitrust suit, has enlisted Girard Gibbs in his fight against the settlement made public this week.

The tentative $324.5 million pact, which frees Google Inc., Intel Corp., Adobe Systems Inc. and Apple Inc. from allegations they kept down wages by conspiring not to hire each others’ employees, was submitted to the court Thursday night. Instead of signing onto the settlement, Devine, a former Adobe engineer, has retained Girard Gibbs partners Dena Sharp and Daniel Girard. In so doing, Devine dumps his former counsel at Lieff Cabraser Heimann & Bernstein and the Joseph Saveri Law Firm.

“He opposes the settlement based on the strength of the evidence and ability of the defendants to pay a greater amount,” Girard Gibbs associate Elizabeth Kramer said. She said Devine will submit a brief in response to the motion for settlement approval.

The proposed settlement asks the court to award each named plaintiff $80,000. They, as well as the rest of the class, will also receive a sliding percentage of the settlement as determined by their base salary. Counsel will file a subsequent motion for attorney fees, which won’t ask for more than the Ninth Circuit benchmark 25 percent in fees or more than $1.2 million in cost reimbursements.

The plaintiffs reached a $20 million settlement last year with Lucasfilm Ltd., Pixar Animation Studios Inc. and Intuit Inc.

Plaintiffs lawyer Joseph Saveri said combined the agreements may be one of the largest employment settlements ever.

“We think the defendants’ agreement to pay in total $344.5 million is a significant sum of money and it goes a long way to compensate the victims,” Saveri said.

Devine voiced his objections earlier this month, telling U.S. District Judge Lucy Koh, who is presiding over the antitrust case in San Jose federal court, the proposed settlement would let the tech giants off far too easily.

But his objection doesn’t mean the settlement is unfair, attorneys with Lieff Cabraser and the Joseph Saveri Law Firm argue.

“As the Ninth Circuit has explained, ‘class counsel ultimately owe their fiduciary responsibility to the class as a whole and are therefore not bound by the views of the named plaintiffs regarding any settlement,'” they wrote, quoting Staton v. Boeing.

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Apple says workers brought bag checks on themselves

By Marisa Kendall, The Recorder

SAN FRANCISCO — Apple attorneys attempted to derail an employment class action pending in federal court Thursday, arguing the company’s retail employees aren’t entitled to wages for time spent in security checks because the checks aren’t mandatory.

Apple dictates employees who bring bags or personal Apple technology to work must submit to security screenings before leaving the store. But employees who choose not to bring such items are not screened, Julie Dunne, cochairwoman of Littler Mendelson’s retail practice group, told U.S. District Judge William Alsup.

“People are bringing laptops so they can watch movies on the bus or during their breaks,” Dunne said. “They’re bringing their iPods so they can listen to music.”

A potential class of thousands of Apple Inc. employees is seeking compensation for time spent waiting in lines to have their bags and personal Apple devices checked, as a theft-prevention measure, after they clocked out. If Alsup finds those security checks were required, as plaintiffs attorneys with New York’s McLaughlin & Stern claim, Apple could be on the hook to pay wages for that time under the Fair Labor Standards Act.

Alsup seemed to relish playing devil’s advocate during Thursday’s hearing.

First he questioned the plaintiffs’ assertion that employees need the items they bring to work. “I got along for 60 years without a cellphone,” Alsup said. “Why is it so important that someone has a cellphone?”

But later he asked Dunne: “Could someone argue that maybe it’s not so easy to leave those things behind, and it’s a necessity of life?”

Apple insists the screenings are optional. “Because Apple does not require any employee to bring a bag or personal Apple technology to work, employees who report to work without bags or personal technology are fully capable of performing their jobs,” Dunne’s team wrote in its motion for summary judgment.

McLaughlin & Stern partner Lee Shalov argued Thursday that Dunne was skewing the law. Apple employees are required to submit to security screenings. Whether they can avoid those screenings by sacrificing and leaving important items at home is immaterial, he told Alsup, who is presiding over Frlekin v. Apple, 13-3451.

“Now they want to add a whole new requirement to the mandatory cases,” Shalov said. “And how do they do it? They engage in some sleight of hand. It’s very clever.”

If Alsup sides with Apple, the results could be absurd, Shalov said. To illustrate the repercussions, he referenced a pending Supreme Court case in which employees were not compensated for time spent waiting to pass through metal detectors: Integrity Staffing Solutions v. Busk.

“By Apple’s reasoning, the security screenings in Busk would not be compensable because employees can ‘choose’ not to wear clothes to work, and, therefore, can avoid the company’s metal detectors,” he wrote in his team’s brief. “Similarly, employees can theoretically ‘choose’ not to have hair and thereby avoid spending time needed to don protective headware.”

PHOTO: U.S. District Judge William Alsup, Northern District of California

Hillary Jones-Mixon

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