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In Silicon Valley thriller, a settlement May preclude the finale

Michael Devine, one of about 64,000 software engineers suing Adobe, Apple, Google and Intel, stands in front of Lake Union in Seattle, April 18, 2014.
Stuart Isett | The New York Times
Michael Devine, one of about 64,000 software engineers suing Adobe, Apple, Google and Intel, stands in front of Lake Union in Seattle, April 18, 2014.

After years of legal skirmishes, four leading Silicon Valley companies are scheduled to go on trial next month on claims of conspiring to keep their employees down.

A 43-year-old programmer who helped set in motion a class-action lawsuit against the companies and became one of its five class representatives will not be present in the San Jose courtroom. He was shot and killed by the police last December.

The programmer, Brandon Marshall, died in circumstances that remain murky. He was agitated and combative, escalating a confrontation with sheriff's deputies by assaulting one, who shot him in the chest.

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Mr. Marshall's death is just one of many ways in which the case has shaped up to be a Silicon Valley drama unlike any other.

The antitrust lawsuit pits 64,613 software engineers against Google, Apple, Intel and Adobe. It accuses the companies of agreeing not to solicit one another's employees in a scheme developed and enforced by Steven P. Jobs of Apple. In their drive for control, the companies undermined their employees' opportunities to get better jobs and make more money, the court papers say.

Settlement talks have accelerated and people close to the case say that barring a last-minute snag, a deal is imminent.

The companies certainly have good reasons to make the case disappear. They do not want to open themselves up to weeks of damaging testimony replete with emails and other evidence the plaintiffs plan to present, many of which have already been made public and been chewed over by the press.

Then there is the uncertain calculus of a potential jury's makeup at a moment when Silicon Valley companies are regarded with increasing distrust by some of the people who live there.

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The plaintiffs say the lost wages in the case add up to $3 billion. If a jury agreed, that sum would be tripled under antitrust law. Three smaller defendants settled last year for $20 million, but that was before the suit won the all-important class-action certification.

But in case there is indeed a trial, the remaining defendants have aggressively tried to control what information would be presented. In a recent court filing, for example, the companies asked that any testimony about Mr. Jobs's volatile personality be excluded.

For the defendants, these tactics are part of a difficult exercise in public relations. A spokesman for Intel said the company did not believe it had done anything illegal. Representatives for the other three companies declined to comment.

For the plaintiffs, though, the stakes are personal.

Mr. Marshall's family, lawyers and employer declined to talk about him, and it is not clear if there is any direct connection between his mental state and the burden of being an engineer challenging the titans of his industry. He had once worked at Adobe, which formed the basis for his suit.

At the time of his death he was working at Roku, the streaming video service, based in the Silicon Valley community of Saratoga, Calif. Media reports about his death did not mention his role in the class action.

According to the Santa Clara County sheriff's office, emergency personnel and deputies were called last Dec. 10 about a distressed man who appeared possibly suicidal. As Mr. Marshall talked to the deputies, he pulled out a five-inch metal spike and hit one of them. Even after Mr. Marshall was shot by that deputy, the sheriff's office said, he was combative and had to be restrained. The deputy who was struck and another deputy were treated at a hospital and released.

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Michael Devine, another of the class representatives, said in an interview that Mr. Marshall had argued with people on social media about the case. "You know how nasty and abusive folks get in online comments," Mr. Devine said. "It apparently really hurt him."

Antitrust class actions are rarely so personal or bitter.

"Most antitrust class actions are commercial cases about unthrilling things like grain prices," said William B. Rubenstein, a Harvard Law professor and the author of a leading treatise on class-action law. "They tend not to involve heartfelt evidence about people's lives."

None of the remaining class representatives seem to fit the stereotype of the swaggering tech worker, driving up in his Lamborghini to displace humble workers from their homes and neighborhoods. They have filed declarations with the court outlining what they call "reasonable fears of workplace retaliation."

Lawyers for the defendants took lengthy depositions from the five representatives, and subpoenaed their personnel files from former jobs. One plaintiff said documents were sought from nine of his previous employers.

The defendants used this information to accuse some of the class representatives of falsifying their qualifications when seeking new employment, including misrepresenting dates of previous jobs in one case and inflating a previous salary by 15 percent in another.

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Daniel Stover, who worked for three years for Intuit, one of the companies that settled last year, wrote in a recent filing, "I have taken substantial risks in my own career by stepping forward. I took the risk that other high-technology companies will not hire me or that clients might not want to work with me."

He added, "That risk will continue throughout my career."

Mr. Devine, who worked at Adobe and is now a freelance mobile phone developer, said the case "has been incredibly stressful to me."

The four remaining class representatives and Mr. Marshall's estate are eligible for incentive awards for their public role in the case if there is a victory or settlement. Any payments would require court approval.

In a region where wealth is measured in billions and a million dollars is required to buy a modest house, the awards would probably not be much. From the initial three settlements for a total of $20 million, the lawyers have asked for incentive payments of $20,000 for each class representative. (They have asked for $5 million for themselves, a standard percentage in these cases.)

Still, the 46-year-old Mr. Devine said he had no regrets.

"It makes me angry when the system is gamed," he said. "I want to know the people I'm doing business with and working for are playing by the rules. If everyone's cheating, what do we have?"

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Rules, however, can be subject to negotiation. The defendants would like rules at trial that greatly limit what the jury hears. In particular, they say they do not want any evidence introduced that shows Mr. Jobs, who died in 2011, as "mean" or "a bully."

"Free-floating character assassination is improper," the defendants assert.

They also are asking that numerous other topics be banned. They say any mention of a Justice Department investigation into hiring practices in Silicon Valley would "confuse" the jury. That investigation, which served as an inspiration and impetus for the current suit, ended when the companies promised to follow employment laws.

The defendants do not want jurors to hear that Google and Apple, in particular, are two of the most financially successful companies in the world, because that might encourage a jury to award a larger sum. And citing a 1940 Supreme Court ruling that "appeals to class prejudice are highly improper," they do not want the wealth and compensation of the companies' management to be mentioned, either.

Last week, lawyers for the plaintiffs filed a response characterizing these requests as overly broad or simply ridiculous. They said, for instance, that it would be difficult to show Mr. Jobs as controlling a conspiracy without also shedding some light on his personality. If jurors then concluded that the Apple chief was a jerk, this would just be tough luck.

—By David Streitfeld of The New York Times

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