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Behind Silicon Valley's Hiring Settlement, a Star Judge With Power to Reshape Tech


U.S. District Judge Lucy Koh in San Francisco in 2013

Photograph by Jason Doiy/The Recorder via AP Photo

U.S. District Judge Lucy Koh in San Francisco in 2013

If the law’s got a name in Silicon Valley, it’s Lucy Haeran Koh.

The 45-year-old trial judge presides over a courtroom on the fourth floor of a federal building on South 1st Street in San Jose, Calif. By happenstance and hard work, Judge Koh has become the most important arbiter of the tech industry’s most important legal clashes. Her skeptical preliminary rulings helped force Apple (AAPL), Google (GOOG), Intel (INTC), and Adobe Systems (ADBE) to settle a landmark antitrust hiring case on Thursday. Meanwhile, she has been ably presiding over the main battle in a global intellectual-property war pitting Apple against Samsung Electronics (Samsung Electronics) and other mobile phone manufacturers that rely on Google’s Android operating system.

For all its ferocity, the epic smartphone-IP confrontation will one day end in an historic cross-licensing truce—or at least that’s what I predicted in a Bloomberg Businessweek cover story. The shape of the phone settlement, like the contours of the financially less-spectacular hiring-antitrust resolution, will reflect the guidance Koh provides in written and verbal pronouncements from the bench.

One of the reasons Apple and the other three tech giants had to settle the hiring case was that Koh issued interim rulings making it crystal clear that the companies would likely lose at trial. Her admirably concise March 28 order denying the defendants’ requests for summary judgment in their favor indicated she would open the door wide to e-mail evidence of plotting among current and former top tech executives, who had sought to depress the wages of their engineers and programmers.

“Defendants have conceded that there were a series of six-bilateral agreements,” the judge noted, by which Silicon Valley employers sought to hold down their payrolls by not recruiting rivals’ employees. “All six of these agreements contained nearly identical terms, precluding each pair from affirmatively soliciting any of each other’s employees,” she added (italics hers). Then the capper: “Defendants’ experts concede that they are unaware of these types of long-term, all-employee agreements ever occurring between other firms.”

Notice how you can understand what she’s saying, even if you’re not a lawyer? Koh laid out in a simple, factual way what the defendant companies have already admitted. She didn’t decide the case in a formal sense—that would have been the jury’s job—but she signaled where she thought things were headed.

And that was before she got to a quick catalogue of the incriminating e-mails among the likes of Apple co-founder Steve Jobs, Google Chairman Eric Schmidt, and Google co-founder Sergey Brin. At one point Jobs told Brin: “If you hire a single one of these people that means war,” according to Brin’s description of a conversation cited in a ruling. The technical legal term for that kind of evidence is “juror catnip.”

On the other hand, Koh did nothing to reassure the plaintiffs’ side that lead members of the class of more than 64,000 employees would be able to avoid intense public scrutiny of their personnel records. That prospect doubtless played into the plaintiffs’ willingness to settle for the modest-seeming sum of $324 million. Divided four ways among the giant companies, that amounts to little more than pocket change.

Koh has a killer résumé for her Solomonic role: A double Harvard graduate, college and law school, she served on the Senate Judiciary Committee, did a stint at the Justice Department, and was an associate and then partner at two prominent law firms representing tech clients. She has expertise in both patent and trade-secret disputes. In 2008, California’s then-Governor Arnold Schwarzenegger, a Republican, appointed her to a state judgeship, and two years later President Barack Obama, a Democrat, elevated her to the federal court. The Senate confirmed her unanimously.

So far as I can determine, she’s the first woman of Korean descent to serve as a U.S. district judge. Talk about a beautiful American success story—one based not on identity politics but professional accomplishment and bipartisan respect. We will be hearing more from Judge Koh for many years to come.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, which tells the story of the Chevron oil pollution case in Ecuador, will be published by Crown in September 2014.

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