(Adds Facebook declined to comment, additional background)
By Dan Levine
SAN FRANCISCO, March 24 Facebook Inc has
emerged as one of the biggest Silicon Valley companies to have
resisted rivals' entreaties to stop poaching each other's
employees, according to emails between the No. 1 social network
and Google Inc released in court filings.
Sheryl Sandberg had just been installed as Facebook's chief
operating officer when one of her former colleagues from Google
emailed her, according to the filings unsealed late last week.
Facebook's aggressive recruitment of Google employees had
heightened tensions between the two companies to "Defcon 2," top
Google executive Jonathan Rosenberg told Sandberg in August
"Fix this problem. Propose that you will substantially lower
the rate at which you hire people from us," Rosenberg told
Sandberg in an email. "Then make sure that happens."
But Sandberg deflected Rosenberg's entreaties, saying she
thought Google only had limited no-solicitation agreements with
companies with which it shared board members, not blanket
no-hire policies with other companies.
Plaintiffs say companies like Apple Inc, Google and
Intel Corp drove down wages by agreeing to avoid
soliciting employees from each other.
"I declined at that time to limit Facebook's recruitment or
hiring of Google employees," Sandberg wrote in a sworn
declaration submitted by the plaintiffs in court.
That response had made Facebook a witness, rather than a
defendant, in a massive antitrust lawsuit brought by tech
workers against the largest players in Silicon Valley.
A Facebook representative declined to comment on Monday,
while a Google spokesman could not immediately be reached.
In past statements, Google said it has always "actively and
aggressively" recruited top talent.
Harry First, a professor at New York University School of
Law who specializes in antitrust, said on Monday the exchange
between Sandberg and Rosenberg at a minimum confirms how board
relationships between the tech companies initially drove the
agreements not to solicit from each other, which then expanded
"That does not look good to the jury," First said.
However, the defendants can also argue that the refusal of
companies like Facebook to limit hiring shows that any alleged
conspiracy could not have impacted the broader job market and
wages in general.
In 2010, Google, Apple, Adobe Systems Inc, Intel and others
agreed to a settlement of a U.S. Justice Department probe that
barred them from agreeing not to poach each other's employees.
The companies have since been fighting the civil antitrust
lawsuit. They argue the plaintiffs cannot successfully prove an
overarching conspiracy to impact wages.
Facebook is not the only Silicon Valley company which
rejected a request to curtail its hiring efforts. In 2007, Apple
co-founder Steve Jobs threatened to file a patent lawsuit
against Palm if that company's chief executive didn't agree to
refrain from poaching Apple employees, according to
correspondence filed in court.
However, then Palm CEO Edward Colligan told Jobs that the
plan was "likely illegal," and that Palm was not "intimidated"
by the threat.
"If you choose the litigation route, we can respond with our
own claims based on patent assets, but I don't think litigation
is the answer," Colligan said.
Trial in the hiring class action is scheduled to begin in
The civil case in U.S. District Court, Northern District of
California is In Re: High-Tech Employee Antitrust Litigation,
(Editing by Bernadette Baum and Richard Chang)