Deserae Ryan et al v. Microsoft Corporation

Filing 83

Order by Judge Lucy H. Koh GRANTING 67 Motion to Dismiss with prejudice (lhklc1, COURT STAFF) (Filed on 11/23/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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DESERAE RYAN, et al.,
Plaintiffs,

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ORDER GRANTING MOTION TO
DISMISS WITH PREJUDICE

v.

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Case No. 14-CV-04634-LHK

Re: Dkt. No. 67
MICROSOFT CORPORATION,

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Defendant.

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Before the Court is Defendant Microsoft Corporation’s motion to dismiss. ECF No. 67.

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Having considered the submissions of the parties, the relevant law, and the record in this case, the

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Court hereby GRANTS Defendant’s motion to dismiss with prejudice.

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I.

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BACKGROUND
A. Factual Background

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1. The Parties

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Plaintiff Deserae Ryan (“Ryan”) and Plaintiff Trent Rau (“Rau”), (collectively,

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“Plaintiffs”), bring this putative class action against Defendant Microsoft Corporation

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(“Defendant” or “Microsoft”) for alleged violations of state and federal antitrust laws. Plaintiff

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Ryan, an individual, is a resident of the State of California. First Amended Compl. (“FAC”), ECF

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No. 61, ¶ 16. Plaintiff Ryan worked for Microsoft as a “Senior Product Manager” from April

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2007 to September 2012 in Redmond, Washington. Id. ¶ 15. Plaintiff Rau, an individual, is a

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resident of the State of Washington. Id. ¶ 18. Plaintiff Rau worked for Microsoft as a “Lead

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Systems Engineer Senior” from June 2006 to June 2010. Id. ¶ 17.

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Defendant Microsoft is a Washington corporation with its principal place of business in
Redmond, Washington. Id. ¶ 19.

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2. In re High-Tech Employees Litigation

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Here, Plaintiffs allege that Defendant Microsoft conspired with “other technology

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companies” in various “Anti-Solicitation and Restricted Hiring” agreements. As the factual and
procedural history of In re High-Tech Employees Litigation, No. 11-CV-02509-LHK, and the DOJ

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Northern District of California

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investigations and complaints are relevant to this action, the Court briefly summarizes the

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background of that litigation below.

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From 2009 to 2010, the Antitrust Division of the DOJ investigated the employment and

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recruitment practices of various Silicon Valley technology companies, including Adobe Systems,

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Inc., Apple, Inc., Google, Inc., Intel Corp., and Intuit, Inc. See In re High-Tech Employees Litig.,

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856 F. Supp. 2d 1103, 1109 (N.D. Cal. 2012). The DOJ filed its complaint against Adobe, Apple,

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Google, Intel, Intuit, and Pixar on September 24, 2010. Id. On December 21, 2010, the DOJ filed

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another complaint against Lucasfilm and Pixar. See No. 11-CV-2509-LHK, ECF No. 65. The

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defendants stipulated to proposed final judgments in which they agreed that the DOJ’s complaints

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had stated claims under federal antitrust law and agreed to be “enjoined from attempting to enter

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into, maintaining or enforcing any agreement with any other person or in any way refrain from . . .

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soliciting, cold calling, recruiting, or otherwise competing for employees of the other person.”

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High-Tech, 856 F. Supp. 2d at 1109–10 (quoting Adobe Proposed Final Judgment at 5). The U.S.

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District Court for the District of Columbia entered the stipulated proposed final judgments in

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March and June of 2011. Id. at 1110.

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The High-Tech plaintiffs filed five separate state court actions between May and July of

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2011. Following removal, transfer to San Jose to the undersigned judge, and consolidation, the

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High-Tech plaintiffs filed a consolidated amended complaint on September 13, 2011. Id. at 1112–

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13. In their complaint, the High-Tech plaintiffs alleged antitrust claims against their employers,

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claiming that the defendants had conspired “to fix and suppress employee compensation and to

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restrict employee mobility.” Id. at 1108. More specifically, the High-Tech plaintiffs alleged a

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conspiracy comprised of “an interconnected web of express bilateral agreements.” Id. at 1110.

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One agreement, the “Do Not Cold Call” agreement involved one company placing the names of

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the other company’s employees on a “Do Not Cold Call” list and instructing its recruiters not to

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cold call the employees of the other company. Id. In addition to the “Do Not Cold Call”

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agreements, the High-Tech plaintiffs also alleged that Pixar and Lucasfilm entered into express,

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written agreements to (1) not cold call each other’s employees, (2) to notify the other company

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whenever making an offer to an employee of the other company, and (3) not to engage in “bidding

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wars.” Id. at 1111.

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3. Alleged Conspiracy in the Instant Action

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In their original complaint, Plaintiffs alleged that Microsoft in May 2007 “was one of

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several parties to an Anti-Solicitation Agreement otherwise known as the ‘Do Not Cold Call’ list,”

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ECF No. 1 ¶ 28, and that Microsoft allegedly entered into a “Restrictive Hiring Agreement” with

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“several other technology companies,” id. ¶ 36.

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In the First Amended Complaint, Plaintiffs appear to have abandoned their allegations that

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Microsoft was a party to two agreements in May 2007. Instead, Plaintiffs now allege that

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Microsoft entered into a series of independent anti-solicitation agreements with various

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companies. See FAC. Plaintiffs allege that each time Microsoft entered into an anti-solicitation

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agreement with a company, Microsoft added the company to an internal “Hands-Off List.” Id.

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¶ 33. The Hands-Off List allegedly consisted of those companies “with whom Microsoft entered

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into a Secret Agreement to restrict or prohibit the solicitation or hiring of each other’s employees.”

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Id. ¶ 34. The First Amended Complaint alleges that Microsoft entered into the following specific

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agreements:

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On April 19, 2005, Microsoft entered into a mutual non-solicitation agreement with
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Transmeta and added Transmeta to the Hands-Off List. Id. ¶ 29.

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In 2005 or 2006, Microsoft reached “an understanding” with Dell that Microsoft

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and Dell would not “poach” each other’s employees, and Microsoft added Dell to

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the Hands-Off List. Id. ¶ 31.
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In 2005, Microsoft entered into a mutual non-solicitation agreement with Yahoo!
and added Yahoo! to the Hands-Off List. Id. ¶ 32; ECF No. 38, Ex. 3.1

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By 2007, Hewlett Packard (“HP”) was included on the Hands-Off List. FAC ¶ 34.

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In June 2009, Microsoft renewed a “Secret Agreement” with HP. Id. ¶ 41. The

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First Amended Complaint does not specify when the “Secret Agreement” began or
when HP was added to the Hands-Off List.

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On an unspecified date, Microsoft and Avanade agreed “to refrain from soliciting

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each other’s employees.” Id. ¶ 38. By 2007, Avanade was included on the Hands-

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Off List. Id. ¶ 34. The First Amended Complaint does not allege when Avanade

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was added to the Hands-Off List.
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In 2007, Microsoft entered into mutual non-solicitation agreements with Nvidia,

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ATI, and Intel and added them to the Hands-Off List. Id. ¶ 35. In June 2009,

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Microsoft renewed its agreement with Nvidia. Id. ¶ 41.
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By 2007, Microsoft agreed with Google “not to directly recruit or ‘cold-call’ each

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Defendant’s unopposed request for judicial notice is GRANTED, and the Court takes notice of
the adjudicative facts contained therein. See ECF No. 68. Defendant requests that the Court take
judicial notice of documents incorporated by reference into the FAC (emails quoted in the FAC
¶¶ 29, 31, 32, 34, 39, 41), matters of public record (SEC filings, filings submitted to the Oregon
Secretary of State’s Office, and filings submitted to the Pennsylvania Department of State), and
newspaper articles. These documents are appropriate for judicial notice. See Knievel v. ESPN,
393 F.3d 1068, 1076 (9th Cir. 2005) (documents referenced in complaint but not physically
attached); Lee v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001) (matters of public
record), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125–26
(9th Cir. 2002); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th
Cir. 2010) (media publications); see also Fed. R. Evid. 201(d).
Plaintiffs’ unopposed request for judicial notice is likewise GRANTED, and the Court takes notice
of the adjudicative facts contained therein. See ECF No. 70, Ex. 1. Plaintiffs request that the
Court take judicial notice of matters of public record (an official document in a DOJ file,
complaints filed with federal district courts, and final judgments of federal district courts). These
documents are appropriate for judicial notice. See Lee, 250 F.3d at 689-90.
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other’s employees, and to also refrain from hiring each other’s manager-level and

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above employees.” Id. ¶ 36. The First Amended Complaint does not specify when

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this agreement began.

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with ASAP Software Express, Inc. Id. ¶ 37.

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On an unspecified date, Microsoft entered into a mutual non-solicitation agreement
with Waggener Edstrom Communications. FAC ¶ 41.

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By 2009, Microsoft agreed not to solicit candidates from IMPAQT and placed
IMPAQT on the Hands-Off List. Id. ¶ 41; ECF No. 68, Ex. 7.

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On an unspecified date, Microsoft entered into a mutual non-solicitation agreement

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In June 2009, Microsoft renewed “Secret Agreements” with Real Networks, Wipro

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Limited, and Nortel. Id. The First Amended Complaint does not specify when

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these agreements first began.

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On an unspecified date, Microsoft entered into non-solicitation agreements with

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Avenue A, Borland, Digitas, OMD, RazzorFish, Real Networks, Satyam, Universal

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McCann, and InfoUSA, Inc.. Id. ¶ 77.

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On an unspecified date, Microsoft entered into an agreement with Expedia
prohibiting Expedia from directly solicitating Microsoft’s employees. Id. ¶ 79.

Altogether, Plaintiffs identify 25 different companies with whom Microsoft allegedly

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entered into non-solicitation agreements. These companies are not limited to Silicon Valley

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technology companies, but also include non-technology companies, including a public relations

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company and a marketing company. See ECF No. 68, Exs. 9-17. The latest dates by which

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Plaintiffs allege that Microsoft entered into these specific agreements are in 2009. Plaintiffs

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additionally allege that between 2007 and 2013, “Microsoft continued to modify and add to its

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Hands-Off List as it continued to renew and engage in new Secret Agreements with over

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approximately 75 different companies, most of which were added to Microsoft’s Hands-off List.”

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Id. ¶ 41. However, Plaintiffs do not allege the identity of these 75 companies, and do not allege

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when these 75 agreements were reached.

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According to Plaintiffs, the effect of these agreements was to restrict competition in the

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labor market and artificially depress compensation. Id. ¶¶ 43, 44, 49. Plaintiffs allege that the

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agreements prohibited the parties to the agreements from cold calling or directly soliciting each

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other’s employees. Id. ¶ 44. Plaintiffs assert that “[c]old calling and direct solicitation serve as

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essential and effective recruiting methods,” because current employees of competitors are “often

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the most highly qualified,” but also “often unresponsive to other recruiting strategies.” Id. ¶ 45.

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Plaintiffs allege that restrictions on cold calling have the effect of “limit[ing] an employee’s

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leverage when negotiating his or her salary with his or her current employer,” and, consequently,

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negatively “impact[s] all salaried employees of participating companies.” Id. ¶ 47. More
specifically, Plaintiffs contend that anti-solicitation agreements “alleviate[] pressure to retain good

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employees by paying higher salaries,” and “suppress[] wages because other rivals are not actively

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soliciting employees through promises of higher salaries and benefits.” Id. ¶ 48.

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4. Statute of Limitations Allegations

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The First Amended Complaint adds a new section titled “Statute of Limitations” that puts

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forward two arguments as to why Plaintiffs’ claims were timely filed. Plaintiffs allege: (1) that

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Microsoft’s conspiracy was a continuing violation of antitrust laws until at least 2013; and (2) that

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Microsoft fraudulently concealed the conspiracy from Plaintiffs until 2013. Plaintiffs’ specific

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allegations as to each theory follow.

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a. Continuing Violation
Plaintiffs allege that “Microsoft’s conspiracy was a continuing violation through which

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Microsoft repeatedly invaded Plaintiffs’ and the Plaintiff Class’ interests by initiating[,] adhering

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to, renewing, amending, enforcing, and reaffirming the anticompetitive Secret Agreements.” FAC

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¶ 74. Plaintiffs allege that “Microsoft continued to add companies to its Hands-off List every year

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beginning as early as 2005, and continued to amend and add companies to the Hands-off List until

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at least 2013.” Id. ¶ 76. Plaintiffs further allege that some of Microsoft’s agreements did not

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expire until after 2013. Id. ¶ 77. Plaintiffs allege that they were injured by these ongoing non-

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solicitation agreements each year they worked for Microsoft because the agreements artificially

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depressed their compensation. Id. ¶ 78.2 Plaintiffs additionally allege that they incurred ongoing

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injury from the non-solicitation agreements because Plaintiffs were not able to obtain employment

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at the companies with whom Microsoft had anti-solicitation agreements. Id. ¶ 79.

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b. Fraudulent Concealment
Plaintiffs allege that Microsoft fraudulently concealed the conspiracy and therefore

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prevented the Plaintiffs from filing their claims on time. For purposes of the fraudulent

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concealment allegation, Plaintiffs allege the following actions constitute affirmative acts by

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Microsoft to keep the non-solicitation agreements secret:
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agreements when asked about compensation. Id. ¶ 83.

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Microsoft’s Human Resources personnel did not mention the non-solicitation

Microsoft “actively misinformed its employees” by asserting in its “Standards of
Business Conduct” that Microsoft obeyed relevant antitrust laws. Id. ¶ 85.

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Microsoft’s Form K-10 SEC filings for 2008-2014 stated that Microsoft openly
competed for employees. Id. ¶¶ 86-87.

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Microsoft did not “widely disseminate[]” written information about the non-

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solicitation agreements, and ensured that the Hands-Off List itself was not

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forwarded. Id. ¶ 88.
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Google’s CEO Eric Schmidt labeled emails he sent about Google’s non-solicitation

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agreement with eBay and Microsoft with the words “DO NOT FORWARD.” Id.

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¶ 89.3
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Microsoft obtained agreement from the DOJ that any documents produced by

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Microsoft during the DOJ investigations would either not be publicly disclosed or

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would be “heavily redacted so as not to publicly reveal the substance of the Secret

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Agreements and the specific companies involved.” Id. ¶ 90.

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Plaintiff Ryan worked for Microsoft from April 2007 to September 2012. FAC ¶ 15. Plaintiff
Rau worked for Microsoft from June 2006 to June 2010. Id. ¶ 17.
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The DOJ ultimately filed lawsuits alleging antitrust violations against Google and eBay, but not
against Microsoft. See ECF No. 70.
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5. Claims
Plaintiffs’ complaint contains four claims for relief under the following statutes: (1)
Section 1 of the Sherman Act, 15 U.S.C. § 1; (2) California’s Cartwright Act, Cal. Bus. & Prof.
Code § 16720; (3) California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code
§§ 17200 et seq.; and (4) California Business & Professions Code § 16600 et seq. Plaintiffs seek
damages, pre- and post-judgment interest, attorney’s fees and expenses, and injunctive relief.
FAC at 38.
B. Procedural History
In light of the relationship between the instant case and the High-Tech case, the Court
briefly summarizes the relevant procedural history in High-Tech in addition to the instant case.
1. High-Tech Procedural Background
The High-Tech defendants removed the first state-court action on May 23, 2011. No. 112509, ECF No. 1. The last state-court action in the High-Tech litigation was removed on July 19,
2011. No. 11-2509, ECF No. 41. The High-Tech cases were reassigned to the undersigned judge
on August 5, 2011. No. 11-2509, ECF No. 60. The High-Tech cases were consolidated on
September 12, 2011. No. 11-2509, ECF No. 64. The First Consolidated Amended Complaint was
filed on September 13, 2011. No. 11-2509, ECF No. 65. On April 18, 2012, the Court granted in
part and denied in part the High-Tech defendants’ joint motion to dismiss and denied Lucasfilm’s
motion to dismiss. No. 11-2509, ECF No. 119. On April 5, 2013, the Court granted in part and
denied in part the High-Tech plaintiffs’ motion for class certification with leave to amend. No. 112509, ECF No. 382. The Court granted the High-Tech plaintiffs’ supplemental motion for class
certification on October 24, 2013. No. 11-2509, ECF No. 531. On November 13, 2013, the HighTech defendants filed a Rule 23(f) petition before the Ninth Circuit, requesting permission to
appeal this Court’s October 24, 2013 class certification order. No. 13-80223, ECF No. 1. The
Ninth Circuit denied the defendants’ petition on January 14, 2014. No. 13-80223, ECF No. 18.
In the interim, three of the High-Tech defendants, Intuit, Lucasfilm, and Pixar, reached an
early settlement with the plaintiffs. On September 21, 2013, the High-Tech plaintiffs filed a
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motion for preliminary approval of a proposed class action settlement as to defendants Intuit,

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Lucasfilm, and Pixar. No. 11-2509, ECF No. 501. On October 30, 2013, the Court granted

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preliminary approval. No. 11-2509, ECF No. 540. The Court granted final approval as to that

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settlement on May 16, 2014. No. 11-2509, ECF No. 915. The Court entered a final judgment

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with regards to Lucasfilm, Pixar, and Intuit on June 9, 2014. No. 11-2509, ECF No. 936. At the

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request of Intuit, the Court entered an amended final judgment on June 20, 2014. No. 11-2509,

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ECF No. 947.
The remaining High-Tech defendants, Adobe, Apple, Google, and Intel, filed individual

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motions for summary judgment, and joint motions for summary judgment and to strike certain
expert testimony on January 9, 2014. No. 11-2509, ECF Nos. 554 (Intel), 556–57 (joint motions),

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560 (Adobe), 561 (Apple), 564 (Google). The Court denied the High-Tech defendants’ five

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individual motions for summary judgment on March 28, 2014. No. 11-2509, ECF No. 771. On

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April 4, 2014, the Court granted in part and denied in part the High-Tech defendants’ motion to

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strike, and denied the defendants’ joint motion for summary judgment. No. 11-2509, ECF No.

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778.

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On May 22, 2014, the High-Tech plaintiffs filed a motion for preliminary approval of class

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action settlement as to the remaining defendants. No. 11-2509, ECF No. 920. On August 8, 2014,

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the Court denied the High-Tech plaintiffs’ motion for preliminary approval and concluded that the

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proposed settlement of $324.5 million did not fall “within the range of reasonableness.” No. 11-

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2509, ECF No. 974, at 30. On September 4, 2014, the High-Tech defendants filed a petition for a

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writ of mandamus with the Ninth Circuit. No. 14-72745, ECF No. 1. On September 22, 2014, the

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Ninth Circuit found that the petition “raises issues that warrant a response,” and ordered briefing.

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No. 14-72745, ECF No. 2. On January 13, 2015, the High-Tech defendants filed correspondence

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with the Ninth Circuit referring to a new proposed settlement agreement. No. 14-72745, ECF No.

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21. On January 30, 2015, the defendants filed an unopposed motion to dismiss the petition, which

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the Ninth Circuit granted on February 2, 2015. No. 14-72745, ECF Nos. 23, 24.

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On January 15, 2015, the High-Tech plaintiffs filed a motion for preliminary approval of
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class action settlement as to the remaining defendants. No. 11-2509, ECF No. 1032. In this

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second proposed class action settlement, the parties had reached a settlement amount exceeding

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the previously rejected settlement by approximately $90.5 million dollars. Id. at 1. Following a

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fairness hearing on March 2, 2015, the Court granted preliminary approval to the January 2015

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settlement agreement on March 3, 2015. No. 11-2509, ECF Nos. 1051, 1054. A final approval

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hearing was held on July 9, 2015. Plaintiffs’ counsel completed filing supplemental briefing on

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attorney’s fees on July 24, 2015. No. 11-2509, ECF No. 1108. The Court granted final approval

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on September 2, 2015. No. 11-2509, ECF No. 1111. The Court entered final judgment with

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regard to Adobe, Apple, Google, and Intel on September 2, 2015. No. 11-2509, ECF No. 1113.
2. Procedural Background in the Instant Action

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Plaintiffs filed their complaint on October 16, 2014. ECF No. 1. The Court related this

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action to In re High-Tech Employees Litigation, No. 11-CV-2509-LHK, on November 19, 2014.

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ECF No. 24. Defendant Microsoft filed motions to transfer venue and to dismiss on December 15,

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2014. ECF Nos. 26, 31. Plaintiffs filed oppositions to Microsoft’s motions on January 15, 2015.

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ECF Nos. 37, 38. Microsoft filed replies on January 28, 2015. ECF Nos. 40, 41. On April 10,

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2015, the Court denied Microsoft’s motion to transfer venue and granted Microsoft’s motion to

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dismiss with leave to amend. ECF No. 53.
Plaintiffs filed their First Amended Complaint on May 22, 2015. ECF No. 61. On June

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17, 2015, Microsoft filed the instant motion to dismiss. ECF No. 67. Plaintiffs filed an opposition

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to Microsoft’s motion on July 15, 2015. ECF No. 70. Microsoft filed a reply on July 29, 2015.

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ECF No. 71.

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II.

LEGAL STANDARD

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A. Rule 12(b)(6)

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Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint

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for failure to state a claim upon which relief can be granted. Such a motion tests the legal

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering

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whether the complaint is sufficient, the Court must accept as true all of the factual allegations

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contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the Court need

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not accept as true “allegations that contradict matters properly subject to judicial notice or by

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exhibit” or “allegations that are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)

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(citation omitted). While a complaint need not allege detailed factual allegations, it “must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that

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a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal citation omitted).

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B. Rule 9(b)

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Claims sounding in fraud or mistake are subject to the heightened pleading requirements of

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Federal Rule of Civil Procedure 9(b), which require that a plaintiff alleging fraud “must state with

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particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b); see Kearns v. Ford Motor

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Co., 567 F.3d 1120, 1124 (9th Cir. 2009). To satisfy the heightened standard under Rule 9(b), the

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allegations must be “specific enough to give defendants notice of the particular misconduct which

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is alleged to constitute the fraud charged so that they can defend against the charge and not just

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deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.

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1985). Thus, claims sounding in fraud must allege “an account of the time, place, and specific

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content of the false representations as well as the identities of the parties to the

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misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam)

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(citation omitted). “A plaintiff must set forth what is false or misleading about a statement, and

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why it is false.” In re GlenFed, Inc. Secs. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc),

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superseded by statute on other grounds as stated in SEC v. Todd, 642 F.3d 1207, 1216 (9th Cir.

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2011). However, “intent, knowledge, and other conditions of a person’s mind” need not be stated

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with particularity, and “may be alleged generally.” Fed. R. Civ. P. 9(b).

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C. Leave to Amend

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If the court concludes that the complaint should be dismissed, it must then decide whether

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to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose
of Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or
technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (citation omitted).
Nonetheless, a district court may deny leave to amend a complaint due to “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d
522, 532 (9th Cir. 2008).
III.

DISCUSSION
Microsoft moves to dismiss Plaintiffs’ First Amended Complaint on the grounds that: (1)

Plaintiffs’ claims are barred under the applicable statutes of limitations; (2) Plaintiffs fail to plead
an antitrust injury under the Sherman Act or the Cartwright Act; (3) Plaintiffs’ allegations lack a
sufficient connection to California to support the California law claims; and (4) Plaintiffs lack
standing to pursue their California law claims. The Court previously concluded that under the
default accrual rules, Plaintiffs’ federal and state law claims accrued when Microsoft allegedly
injured Plaintiffs by entering into a non-solicitation conspiracy. Ryan v. Microsoft, No. 14-CV4634, 2015 WL 1738352, at *12, 16 (N.D. Cal. April 10, 2015). Applying these default accrual
rules, the Court found that Plaintiffs’ federal and state claims, as alleged in the original complaint,
accrued in 2007. Id. The Court concluded Plaintiffs’ claims are time barred under the relevant
statutes of limitations unless Plaintiffs adequately allege either an applicable exception to the
default accrual rules or a tolling doctrine. Ryan, 2015 WL 1738352, at *17.
In the First Amended Complaint, Plaintiffs have abandoned their allegation from the
original complaint that Microsoft entered a non-solicitation conspiracy in 2007. Instead, the First
Amended Complaint alleges for the first time that Microsoft entered a series of individual non12
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

solicitation agreements with various companies beginning in 2005. The Court therefore begins by

2

discussing the statute of limitations and default accrual rules for Plaintiffs’ new allegations. The

3

Court then addresses whether a tolling doctrine applies. Finally, the Court addresses whether

4

Plaintiffs have adequately pled an applicable federal or state law exception to the default accrual

5

rules. As the Court finds that Plaintiffs’ claims are barred by the statutes of limitations, the Court

6

need not address Microsoft’s remaining arguments.

7

A. The Applicable Statues of Limitations

8

The Court previously found that Plaintiffs’ claims under the Sherman Act, Cartwright Act,

9

and UCL are all subject to a four year statute of limitations. Ryan v. Microsoft, No. 14-CV-4634,

10

2015 WL 1738352, at *10; see 15 U.S.C. § 15b (Sherman Act); Cal. Bus. & Prof. Code § 16750.1

11
United States District Court
Northern District of California

1

(Cartwright Act); Cal. Bus. & Prof. Code § 17208 (UCL). Because Plaintiffs filed their original

12

complaint on October 16, 2014, see ECF No. 1, Plaintiffs must allege either that their causes of

13

action accrued after October 16, 2010, or that the statutes of limitations were tolled until at least

14

October 16, 2010.

15

B. Accrual of Plaintiffs’ Claims under the Default Accrual Rules

16

The Court begins by addressing when Plaintiffs’ claims as alleged in the First Amended

17
18

Complaint accrued under the applicable default accrual rules.
Plaintiffs’ Sherman Act claim began to accrue at the time Microsoft allegedly injured

19

Plaintiffs. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971)

20

(“Generally, [an antitrust cause] of action accrues and the statute begins to run when a defendant

21

commits an act that injures a plaintiff’s business. . . .”). As the Ninth Circuit explained in

22

Beneficial Standard Life Insurance Co. v. Madariaga, 851 F.2d 271, 274–75 (9th Cir. 1988), “[i]n

23

[antitrust] actions governed by 15 U.S.C. § 15b, the plaintiff’s knowledge is generally irrelevant to

24

accrual, which is determined according to the date on which injury occurs.”

25

Here, Plaintiffs’ First Amended Complaint alleges that Microsoft entered into specific anti-

26

solicitation agreements with various technology companies. The first of these alleged agreements

27

was entered into in 2005. See FAC ¶¶ 29-32. Accordingly, the earliest the Plaintiffs’ Sherman

28

13
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

Act claim could have accrued was 2006, when Plaintiff Rau began working for Microsoft and

2

allegedly was injured by Microsoft’s antitrust agreements. See id. ¶ 17.4 If each subsequent anti-

3

solicitation agreement entered into by Microsoft constituted a new antitrust violation, then

4

Plaintiffs’ Sherman Act claim could have accrued as late as 2009, the last year in which Plaintiffs

5

allege that a specific new antitrust agreement was entered into by Microsoft. See id. However, in

6

order for Plaintiffs’ Sherman Act claim to be timely, it would have had to accrue after October 16,

7

2010. Even assuming that the Sherman Act claim accrued in 2009, and not 2006, the statute of

8

limitations expired in 2013—a year before Plaintiffs filed their original complaint in 2014—unless

9

Plaintiffs can show that an exception to the accrual rule or a tolling doctrine applies.
Plaintiffs First Amended Complaint also contains causes of action under three California

10

United States District Court
Northern District of California

11

statutes: (1) California’s Cartwright Act, Cal. Bus. & Prof. Code § 16720; (2) California’s Unfair

12

Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq.; and (3) California Business

13

& Professions Code § 16600 et seq. As a general rule, under California law the default accrual

14

rule is the “last element rule,” where a claim accrues “‘when [it] is complete with all of its

15

elements’—those elements being wrongdoing, harm, and causation.” Pooshs v. Philip Morris

16

USA, Inc., 51 Cal. 4th 788, 797 (2011) (quoting Norgart v. Upjohn Co., 21 Cal. 4th 383, 397

17

(1999)). The Court previously concluded that the “last element rule” applied to Plaintiffs’

18

California claims. See Ryan, 2015 WL 1738352, at *16. Under the “last element rule,” Plaintiffs’

19

claims accrued no later than 2009, and the statutes of limitations expired in 2013, a year before

20

Plaintiffs filed their original complaint. Thus, Plaintiffs’ California law claims, like Plaintiffs’

21

Sherman Act claim, are time barred unless an exception to the default accrual rule or a tolling

22

doctrine applies.

23

Because none of Plaintiffs’ federal or state law claims are timely under the applicable

24

default accrual rules, the Court turns to whether an exception to the default accrual rules or a

25

tolling doctrine applies. Plaintiffs argue: (1) that they are entitled to statutory tolling under 15

26
27
28

4

Plaintiff Ryan began working for Microsoft in 2007. FAC ¶ 17.
14

Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

U.S.C. § 16(i), (2) that the “continuing violations” doctrine under federal law should apply, (3)

2

that the fraudulent concealment doctrine under federal law should apply, (4) that the California

3

“discovery rule” for accrual should apply to their UCL claim, and (5) that the California

4

“continuous accrual” rule should apply to all of their California law claims. The Court addresses

5

each argument in turn.

6

C. Statutory Tolling

7

In opposition to Microsoft’s motion to dismiss, Plaintiffs argue that the statutes of

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17

limitations were statutorily tolled by 15 U.S.C. § 16(i). Section 16(i) provides:
Whenever any civil or criminal proceeding is instituted by the United States to
prevent, restrain, or punish violations of any of the antitrust laws, but not including
an action under section 15a of this title, the running of the statute of limitations in
respect to every private or State right of action arising under said laws and based in
whole or in part on any matter complained of in said proceeding shall be suspended
during the pendency thereof and for one year thereafter: Provided, however, That
whenever the running of the statute of limitations in respect of a cause of action
arising under section 15 or 15c of this title is suspended hereunder, any action to
enforce such cause of action shall be forever barred unless commenced either
within the period of suspension or within four years after the cause of action
accrued.
15 U.S.C. § 16(i) (emphasis in original).
To receive tolling under section 16(i), “[t]he plaintiff bears the burden of showing that the

18

two suits are based in whole or in part on the same matter.” Charley’s Tour & Transp., Inc. v.

19

Interisland Resorts, Ltd., 618 F. Supp. 84, 86 (D. Haw. 1985). To determine whether a private

20

suit is “based in whole or in part on any matter complained of” in a prior government action, the

21

Court is “limited to a comparison of the two complaints on their face.” Chipanno v. Champion

22

Int’l Corp., 702 F.2d 827, 832 (9th Cir. 1983). There must be a “real relation” between the

23

government and private causes of action. Leh v. Gen. Petroleum Corp., 382 U.S. 54, 59 (1965).

24

“The real relation test is met where the conspiratorial acts of the defendants are intertwined with

25

and fundamentally the same” as those alleged in the three government-filed lawsuits. Charley’s

26

Tour, 618 F. Supp. at 86. Factors the Court considers to assess the existence of a “real relation”

27

between the two suits include whether “there is substantial identity of parties” between the two

28

15
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

suits, Leh, 382 U.S. at 63; whether the private suit alleges “a conspiracy that included the

2

objectives, means, time span, and geographic scope of the conspiracy alleged in the government

3

suit;” and whether “evidence adduced in the trial of the government suit would be of practical

4

assistance to plaintiffs in proving their own complaint,” Chipanno, 702 F.2d at 832.

5

Plaintiffs first argue that the DOJ investigation into Microsoft is entitled to statutory tolling

6

under 15 U.S.C. § 16(i). The DOJ opened an investigation into possible antitrust violations by

7

Microsoft in 2009. See ECF No. 70-1, Ex. A. The DOJ informed Microsoft that the DOJ would

8

not pursue a case against Microsoft on October 29, 2014, nearly two weeks after Plaintiffs filed

9

the instant action. Id.
In support of their argument that the investigation is entitled to statutory tolling, Plaintiffs

11
United States District Court
Northern District of California

10

cite only to Dungan v. Morgan Drive-Away, Inc., 570 F.2d 867 (9th Cir. 1978). See ECF No. 70

12

at 6. In Dungan, the Ninth Circuit discussed how to assess the date on which statutory tolling

13

should begin by stating that “[t]he initiation of an investigation or a decision to prosecute more

14

comfortably fits the statutory language than does empaneling the grand jury.” 570 F.2d at 871.

15

However, the Ninth Circuit went on to say that to select either the date of the initiation of an

16

investigation or the date on which a decision to prosecute was made for the start of tolling “would

17

introduce great uncertainty in fixing the time at which the suspension period commences” and

18

“would frustrate the statute-of-repose purpose of section 16(i).” Id. The Ninth Circuit therefore

19

declined to select the date of the initiation of an investigation as the time for the start of statutory

20

tolling. Id. Instead, courts use the date on which the government filed a complaint as the date on

21

which statutory tolling began. See Leh, 382 U.S. at 55-63 (giving tolling effect from the time the

22

government filed a complaint); Chipanno, 702 F.2d at 832-33 (giving tolling effect from the time

23

the government filed a complaint); Aurora Enters., Inc. v. Nat’l Broad. Co., 688 F.2d 689, 693

24

(9th Cir. 1982) (evaluating tolling during the pendency of a government-filed lawsuit); Charley’s

25

Tour, 618 F. Supp. at 86 (evaluating tolling from the time the government filed its actions); In re

26

Scrap Metal Antitrust Litigation, 2006 WL 2850453 (rejecting the argument that tolling begins at

27

the time of the investigation and holding that tolling begins when the government filed a lawsuit).

28

16
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

In 2014, the DOJ “closed its investigation of [Microsoft] relating to potential agreements among

2

certain firms regarding employee recruiting” without filing a complaint against Microsoft. ECF

3

No. 70-2. Because the DOJ never filed a complaint against Microsoft, Plaintiffs are not entitled to

4

any tolling based on the DOJ’s investigation of Microsoft.
Plaintiffs additionally argue that they are entitled to statutory tolling during the pendency

5

of three government-filed lawsuits related to the High-Tech cases: United States v. Adobe Sys.,

7

Inc., No. 10-cv-1629 (D.D.C.); United States v. Lucasfilm, Inc., No. 10-cv-2220 (D.D.C.); and

8

United States v. eBay, Inc., No. 12-cv-5869 (N.D. Cal.). To receive statutory tolling for the

9

pendency of these lawsuits, Plaintiffs must show that these lawsuits are “based in whole or in part

10

on the same matter” as the instant lawsuit. Charley’s Tour, 618 F. Supp. at 86.5 First, the Court

11
United States District Court
Northern District of California

6

notes that there is no overlap between the parties in the government-filed lawsuits and the instant

12

lawsuit. The defendants in United States v. Adobe were Adobe Systems, Apple, Google, Intel,

13

Intuit, and Pixar. ECF No. 70-1, Ex. B. The sole defendant in United States v. Lucasfilm was

14

Lucasfilm, and the sole defendant in United States v. eBay was eBay. Id. Exs. C, F. Microsoft

15

was not a defendant in any of the three government-filed lawsuits.
Moreover, none of the complaints in the three government-filed lawsuits mentions any

16
17

actions taken by Microsoft or any agreement entered into with Microsoft. Id. Exs. B, C, F.

18

Although the government complaints relate to non-solicitation agreements by technology

19

companies in the early 2000s, they do not relate to any non-solicitation agreements with

20

Microsoft. The Adobe complaint alleges the existence of five agreements not to cold call each

21
22
23
24
25
26
27
28

5

Microsoft argues that only United States v. eBay could provide sufficient tolling to render
Plaintiffs’ claims timely because both United States v. Adobe and United States v. Lucasfilm
concluded more than a year prior to October 16, 2014. See ECF No. 71, at 1-2. Section 16(i)
provides that the statute of limitations for Sherman Act claims brought by private individuals
expires no later than one year after the termination of a related government proceeding or within
four years after the cause of action accrued. See Aurora Enters., 688 F.2d at 693 (holding that a
DOJ action that settled more than a year before the filing of the plaintiff’s Sherman Act claim did
not toll the statute of limitations). However, section 16(i) does not place the same limit on state
law claims, so section 16(i) may toll the statute of limitations longer for state law claims. See 15
U.S.C. § 16(i) Because Plaintiffs’ arguments for tolling based on each of the three governmentfiled lawsuits all fail, the Court need not reach whether Plaintiffs’ state law claims could be tolled
for longer than Plaintiffs’ Sherman Act claim.
17
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

other’s employees, each between two companies. ECF No. 70-1 Ex. B ¶ 15. These agreements

2

were between: (1) Apple and Google, (2) Apple and Adobe, (3) Apple and Pixar, (4) Google and

3

Intel, and (5) Google and Intuit. Id. Microsoft was not a party to any of these agreements, and

4

none of the alleged agreements restricted any of the named companies from hiring employees

5

from Microsoft. Id.

6

Similarly, the Lucasfilm complaint alleged a conspiracy between Lucasfilm and Pixar not

7

to compete for each other’s employees. ECF No. 70-1, Ex. C ¶ 16. The Lucasfilm complaint does

8

not mention any other technology companies. See id.

9

Likewise, the eBay complaint alleges a conspiracy between eBay and Intuit in which the
two companies agreed to restrict their ability to recruit each other’s employees. ECF No. 70-1,

11
United States District Court
Northern District of California

10

Ex. F ¶ 14. No other technology companies are mentioned in the eBay complaint. See id.

12

Because the conspiracies alleged in the Adobe, Lucasfilm, and eBay complaints do not

13

involve Microsoft, Plaintiffs’ allegations of misconduct by Microsoft in the instant lawsuit are not

14

“intertwined with and fundamentally the same as those alleged in the government action[s].”

15

Charley’s Tour, 618 F. Supp. at 86. As a result of the disparity between the government-filed

16

lawsuits and Plaintiffs’ lawsuit, Plaintiffs cannot show that “evidence adduced in the trial of the

17

government suit would be of practical assistance to plaintiffs in proving their own complaint.”

18

Chipanno, 702 F.2d at 832. Consequently, Plaintiffs have not met their burden of showing a “real

19

relation” between the government-filed lawsuits and the instant lawsuit. Leh, 382 U.S. at 59.

20

Thus, Plaintiffs are not entitled to statutory tolling.

21

D. Continuing Violation

22

Plaintiffs next argue that the First Amended Complaint alleges “continuing violations” by

23

Microsoft beyond October 16, 2010, thus meriting the application of the federal “continuing

24

violation” doctrine to render Plaintiffs’ Sherman Act claim timely.

25

Under the “continuing violation” doctrine, “each overt act that is part of the [antitrust]

26

violation and that injures the plaintiff . . . starts the statutory period running again, regardless of

27

the plaintiff’s knowledge of the alleged illegality at much earlier times.” Klehr v. A.O Smith

28

18
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

Corp., 521 U.S. 179, 189 (1997) (quotations omitted); Pace Indus. v. Three Phoenix Co., 813 F.2d

2

234, 237 (9th Cir. 1987) (“A continuing violation is one in which the plaintiff’s interests are

3

repeatedly invaded and a cause of action arises each time the plaintiff is injured.”). In the Ninth

4

Circuit, an overt act restarts the statute of limitations if it: (1) is “a new and independent act that is

5

not merely a reaffirmation of a previous act”; and (2) “inflict[s] new and accumulating injury on

6

the plaintiff.” Pace, 813 F.2d at 237; see also Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d

7

1199, 1202–03 (9th Cir. 2014), cert. denied, 135 S. Ct. 1157 (2015).

8
9

Plaintiffs’ First Amended Complaint alleges that Microsoft engaged in continuing
violations beyond October 2010 by entering into new non-solicitation agreements and maintaining
existing non-solicitation agreements until at least 2013. FAC ¶¶ 74-77. Although the Court

11
United States District Court
Northern District of California

10

accepts “factual allegations in the complaint as true,” Manzarek v. St. Paul Fire & Marine Ins.

12

Co., 519 F.3d 1025, 1031 (9th Cir. 2008), the Court need not accept as true “allegations that are

13

merely conclusory,” Gilead Scis., 536 F.3d at 1055. In dismissing Plaintiffs’ original complaint,

14

the Court noted that the complaint was “bereft of any dates or details with regards to Microsoft’s

15

specific conduct.” Ryan, 2015 WL 1738352, at *13. Specifically, Plaintiffs failed to allege “any

16

new or independent actions taken by the Defendants after October 16, 2010.” Id. Accordingly,

17

the Court concluded that Plaintiffs had not pled a continuing violation. Id. The Court warned

18

Plaintiff that failure to cure the timeliness deficiencies in an amended complaint would lead to

19

dismissal with prejudice. Id. at *17.

20

Plaintiffs’ First Amended Complaint states the years in which Microsoft allegedly entered

21

into anti-solicitation agreements before 2009, but the First Amended Complaint still does not

22

include any dates or details as to Microsoft’s specific conduct from 2010 onward. In spite of the

23

Court’s warning that the Plaintiffs need to allege details regarding “new or independent actions

24

taken by the Defendants after October 16, 2010” in order plead a continuing violation, Ryan, 2015

25

WL 1738352, at *13, the First Amended Complaint does not provide any specific information

26

regarding any new agreement entered into by Microsoft after 2009. See FAC. Furthermore, prior

27

to filing the First Amended Complaint, Plaintiffs had the benefit of the documents from the DOJ’s

28

19
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

2009-2014 investigation of possible antitrust violations by Microsoft. See ECF No. 70-1, Ex. A.

2

Despite years of discovery by the DOJ, Plaintiffs have not identified a single anti-solicitation

3

agreement allegedly entered into by Microsoft after 2009.

4

Instead, Plaintiffs argue that the Court should find a continuing violation after 2009 based

5

on: (1) Microsoft’s maintenance and renewal of agreements entered into before 2009, and (2) the

6

fact that Plaintiffs were not invited to interview with the companies with whom Microsoft

7

allegedly entered into anti-solicitation agreements prior to 2009. ECF No. 70 at 9. The First

8

Amended Complaint additionally states that Microsoft “continued to amend and add companies to

9

the Hands-off List until at least 2013.” FAC ¶ 76. However, Plaintiffs in their opposition to
Microsoft’s motion to dismiss have abandoned the argument that Microsoft entered into new non-

11
United States District Court
Northern District of California

10

solicitation agreements after 2009 and that such entry into the new agreements constitutes overt

12

acts under the continuing violation doctrine. See ECF No. 70 at 9. Moreover, Plaintiffs’

13

allegation that Microsoft “continued to add companies to its Hands-off List every year beginning

14

as early as 2005, and continued to amend and add companies to the Hands-off List until at least

15

2013” is merely conclusory and insufficient to plead a continuing violation based on new

16

agreements after 2009. See Gilead Scis., 536 F.3d at 1055. The Court therefore turns first to

17

Microsoft’s alleged maintenance and renewal of agreements and then to the fact that Plaintiffs

18

were not interviewed by other companies.

19

Plaintiffs’ allegations that Microsoft had non-solicitation agreements that Microsoft

20

maintained and renewed past October 2010 are insufficient to qualify for the continuing violation

21

doctrine. To satisfy the continuing violation doctrine, Plaintiffs must allege an overt act:

24

A continuing violation is one in which the plaintiff’s interests are repeatedly
invaded and a cause of action arises each time the plaintiff is injured. However,
even when a plaintiff alleges a continuing violation, an overt act by the defendant is
required to restart the statute of limitations and the statute runs from the last overt
act.

25

Pace, 813 F.2d at 237. Accordingly, where the defendant entered into an allegedly unlawful

26

contract prior to the limitations period, the defendant still must take an unlawful “new and

27

independent act that is not merely a reaffirmation of a previous act” during the limitations period.

22
23

28

20
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

See Pace, 813 F.2d at 237; see Samsung, 747 F.3d at 1204 (expanding a license agreement in 2006

2

to include products not covered by the previous 2003 license agreement was an overt act because

3

the “2003 license did not contemplate future expansion”); Columbia Steel Casting Co. v. Portland

4

Gen. Elec. Co., 111 F.3d 1427, 1444-45 (9th Cir. 1996), cert. denied, 523 U.S. 1112 (1998)

5

(refusal, based on a prior agreement, to wheel electricity to the plaintiff qualified as an overt act

6

because the previous agreement “was not a permanent and final decision that controlled the later

7

act”); Hennegan v. Pacifico Creative Servs., Inc., 787 F.2d 1299, 1300-01 (9th Cir. 1986), cert.

8

denied, 479 U.S. 886 (1986) (holding that payments by souvenir vendors to tour operators and the

9

tour operators steering tourists away from the plaintiffs’ shop qualified as overt acts). Merely

10

carrying out during the limitations period a final, binding decision made prior to the limitations

11
United States District Court
Northern District of California

1

period does not qualify as a new overt act. See In re Multidistrict Vehicle Air Pollution, 591 F.2d

12

68, 71-72 (9th Cir. 1979) (holding that the defendants’ refusal during the limitations period to

13

purchase afterburner devices from a particular company did not constitute an overt act to restart

14

the limitations period because the defendants’ refusal was based on an agreement entered into

15

prior to the limitations period). Here, Plaintiffs allege only that Microsoft maintained and

16

reaffirmed its preexisting non-solicitation agreements after 2009. See FAC ¶¶ 75-77. Plaintiffs do

17

not allege that Microsoft took any new and independent act after 2009, beyond maintaining and

18

reaffirming the existing agreements. Maintaining and reaffirming prior agreements do not suffice

19

to show an overt act. Pace, 813 F.2d at 237 (the continuing violation doctrine requires Plaintiffs

20

to allege “a new and independent act that is not merely a reaffirmation of a previous act”). Thus,

21

the maintenance and renewal of the preexisting non-solicitation agreements does not qualify as an

22

overt act. See id.

23

Finally, Plaintiffs argue that the fact that they were not recruited, interviewed or hired by

24

Microsoft’s alleged co-conspirators after 2010 constitutes a continuing violation. See ECF No. 70

25

at 9. However, other companies’ inaction by not interviewing or hiring Plaintiffs is not “an overt

26

act” by Microsoft, as required to show a continuing violation. See Pace, 813 F.2d at 237 (“[A]n

27

overt act by the defendant is required to restart the statute of limitations.” (emphasis added)).

28

21
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1
2

Therefore, Plaintiffs have not alleged a continuing violation that would restart the statute
of limitations.

3

E. Fraudulent Concealment

4

The Court next turns to Plaintiffs’ argument that their complaint is timely because

5

Microsoft fraudulently concealed the alleged conspiracy until at least May 17, 2013.

6

The purpose of the fraudulent concealment doctrine is to prevent a defendant from

7

“concealing a fraud . . . until such a time as the party committing the fraud could plead the statute

8

of limitations to protect it.” Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349 (1874). Thus, “[a]

9

statute of limitations may be tolled if the defendant fraudulently concealed the existence of a cause
of action in such a way that the plaintiff, acting as a reasonable person, did not know of its

11
United States District Court
Northern District of California

10

existence.” Hexcel Corp. v. Ienos Polymers, Inc., 681 F.3d 1055, 1060 (9th Cir. 2012). The

12

plaintiff bears the burden of pleading and proving fraudulent concealment. Id.; see also Conmar

13

Corp. v. Mitsui & Co. (U.S.A.), Inc., 858 F.2d 499, 502 (9th Cir. 1988).

14

To plead fraudulent concealment, the plaintiff must allege that: (1) the defendant took

15

affirmative acts to mislead the plaintiff; (2) the plaintiff did not have “actual or constructive

16

knowledge of the facts giving rise to its claim”; and (3) the plaintiff acted diligently in trying to

17

uncover the facts giving rise to its claim. Hexcel, 681 F.3d at 1060; see also Conmar, 858 F.2d at

18

502; Beneficial Standard Life Insurance Co. v. Madariaga, 851 F.2d 271, 276 (9th Cir. 1988).

19

Moreover, allegations of fraudulent concealment must be pled with particularity. Conmar,

20

858 F.2d at 502. Although “it is generally inappropriate to resolve the fact-intensive allegations of

21

fraudulent concealment at the motion to dismiss stage,” In re Rubber Chemicals Antitrust Litig.,

22

504 F. Supp. 2d 777, 789 (N.D. Cal. 2007), Plaintiffs nevertheless must allege specific factual

23

allegations of fraudulent concealment to survive a motion to dismiss. In re Transpacific

24

Passenger Air Transp. Antitrust Litigation, No. C 07-5634 CRB, 2011 WL 1753738, at *20-21

25

(N.D. Cal. May 9, 2011). “Conclusory statements are not enough.” Conmar, 858 F.2d at 502.

26

The Court first addresses whether Plaintiffs have alleged the first element of fraudulent

27

concealment, whether Microsoft took affirmative acts to mislead Plaintiffs. Because the Court

28

22
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

concludes that Plaintiffs have not met their burden to plead affirmative acts to mislead, the Court

2

need not address the remaining elements of the fraudulent concealment analysis.

3

To satisfy the first element of fraudulent concealment, “[a] plaintiff alleging fraudulent

4

concealment must establish that its failure to have notice of its claim was the result of affirmative

5

conduct by the defendant.” Conmar, 858 F.2d at 505. “Passive concealment of information is not

6

enough to toll the statute of limitations unless the defendant had a fiduciary duty to disclose

7

information to the plaintiff.” Id. An affirmative act of denial constitutes an affirmative act of

8

fraudulent concealment only “if the circumstances make the plaintiff’s reliance on the denial

9

reasonable.” Id. Thus, the mere “failure to own up to illegal conduct” in response to an inquiry
about whether the defendant engaged in illegal antitrust activity is not sufficient for fraudulent

11
United States District Court
Northern District of California

10

concealment, and to find otherwise “would effectively nullify the statute of limitations in these

12

cases.” Pocahontas Supreme Coal. Co. v. Bethlehem Steel Corp., 828 F.2d 211, 218-19 (4th Cir.

13

1987); see also Conmar, 858 F.2d at 505 (citing favorably Pocahontas, 828 F.2d at 218).

14

In its prior order granting Microsoft’s motion to dismiss Plaintiffs’ original complaint, the

15

Court held that Microsoft had no obligation to affirmatively disclose its alleged illicit conduct, and

16

thus that Plaintiffs were required to plead affirmative acts to mislead. Ryan, 2015 WL 1738352, at

17

*14. The Court then addressed Plaintiffs’ allegations that Microsoft “provided pretextual,

18

incomplete, or materially false and misleading explanations.” Id. at *15. The Court found that

19

Plaintiffs had not alleged “when, where, or to whom Microsoft allegedly provided these false and

20

misleading explanations, or the content of these allegedly misleading explanations.” Id. As a

21

result, the Court held that Plaintiffs’ allegations did not satisfy Rule 9(b)’s heightened pleading

22

standard, as required for allegations of fraudulent concealment. Id. Therefore, the Court

23

concluded that Plaintiffs had failed to adequately allege fraudulent concealment. Id. The Court

24

warned Plaintiffs that failure to cure the deficiencies in the complaint would lead to dismissal with

25

prejudice. Id. at *17.

26
27
28

Plaintiffs do not challenge this Court’s previous finding that Microsoft had no obligation to
affirmatively disclose its alleged illicit conduct. See ECF No. 70 at 10-11. Instead, Plaintiffs
23
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1

argue that they have met their burden to plead affirmative conduct by alleging: (1) “misleading

2

oral and written statements issued by Microsoft both before and during the limitations period,

3

including false statements in annual reports” (2) “efforts by Microsoft to limit access to and

4

circulation of documents reflecting its secret agreements,” and (3) “attempts by Microsoft in the

5

DOJ proceedings and follow-on private litigation to conceal portions of key documents from

6

public scrutiny.” ECF No. 70 at 11. Microsoft counters that: (1) Plaintiffs’ allegations are

7

insufficient under Rule 9(b); (2) Microsoft’s alleged efforts at secrecy did not amount to active

8

concealment, and (3) Plaintiffs have failed to allege that they reasonably relied upon Microsoft’s

9

allegedly misleading statements. ECF Nos. 67 at 10; 71 at 6-8. The Court addresses each of

10

United States District Court
Northern District of California

11
12

Microsoft’s arguments in turn.
1. Rule 9(b)
The Court finds that Plaintiffs’ allegations of two categories of affirmative acts of

13

misconduct again fail to meet the heightened pleading standard of Rule 9(b). To satisfy Rule 9(b),

14

Plaintiffs must allege “an account of the time, place, and specific content of the false

15

representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG

16

LLP, 476 F.3d 756, 764 (9th Cir. 2007). First, Plaintiffs fail to sufficiently allege misleading

17

conversations between Microsoft personnel and Plaintiffs. Second, Plaintiffs fail to sufficiently

18

allege affirmative acts of concealment during the DOJ proceedings.

19
20

a. Allegedly misleading conversations
Plaintiffs’ First Amended Complaint alleges that Plaintiffs’ conversations with Microsoft

21

employees constitute affirmative acts of fraudulent concealment. Specifically, Plaintiffs allege

22

that when asked by Plaintiffs about Microsoft’s compensation, Plaintiffs’ unnamed supervisors

23

and other “Human Resources personnel” failed to disclose the non-solicitation agreements. FAC

24

¶ 83. Plaintiffs allege that instead “Microsoft’s Human Resources and senior management

25

responded by misleading Plaintiffs, telling them that their compensation and the compensation of

26

all Microsoft employees was ‘competitive,’ that it was based on compensation levels

27

commensurate with Microsoft’s competitors.” Id. Plaintiffs allege that Plaintiff Ryan’s and

28

24
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Plaintiff Rau’s conversations about compensation with Microsoft employees took place “in 2011

2

and 2012” and “in approximately 2008,” respectively. Id. The First Amended Complaint

3

provides no further information about the names of the individuals at Microsoft who spoke to

4

Plaintiffs, where these conversations allegedly took place, the date and time of the alleged

5

conversations, whether the conversations occurred in person or over email, or what exactly

6

Plaintiffs were told.

7

In order to satisfy the pleading requirements of Rule 9(b), Plaintiffs must identify the

8

“time, place, and specific content of the false representations as well as the identities of the parties

9

to the misrepresentations.” Swartz, 476 F.3d at 764 (quoting Edwards v. Marin Park, Inc., 356
F.3d 1058, 1066 (9th Cir. 2004)). “The complaint must specify such facts as the times, dates,

11
United States District Court
Northern District of California

10

places, benefits received, and other details of the alleged fraudulent activity.” Neubronner v.

12

Milken, 6 F.3d 666, 672 (9th Cir. 1993). “To comply with Rule 9(b), allegations of fraud must be

13

specific enough to give defendants notice of the particular misconduct which is alleged to

14

constitute the fraud charged so that they can defend against the charge and not just deny that they

15

have done anything wrong.” Swartz, 476 F.3d at 764 (quoting Bly-Magee v. Cal., 236 F.3d 1014,

16

1019 (9th Cir. 2001)).

17

In this case, Plaintiffs allegations lack sufficient specificity to give Microsoft notice of the

18

particular misconduct alleged to have been fraudulent. For example, the First Amended

19

Complaint does not specify the identity of the parties who allegedly made false representations to

20

Plaintiffs beyond the broad descriptors of “Human Resources and senior management.” See FAC

21

¶ 83. Plaintiff additionally does not specify the time, date, or place of the allegedly misleading

22

conversations. See Neubronner, 6 F.3d at 672 (“The complaint must specify such facts as the

23

times, dates, places, benefits received, and other details of the alleged fraudulent activity.”).

24

Without more specific information as to who spoke to Plaintiffs when, Plaintiffs have not given

25

Microsoft sufficient notice of what conversations Plaintiffs allege were fraudulent. As such,

26

Microsoft is hindered in its ability to adequately defend against the accusation through the

27

testimony of the Microsoft employees involved. See Swartz, 476 F.3d at 764 (“To comply with

28

25
Case No. 14-CV-04634-LHK
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Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular

2

misconduct which is alleged to constitute the fraud charged so that they can defend against the

3

charge.”); see also Das v. WMC Mortg. Corp., 831 F. Supp. 2d 1147, 1166 (N.D. Cal. 2011)

4

(“Plaintiffs, for instance, did not plead with the requisite particularity the name of the AmNet

5

employee who concealed material facts . . . . As such, Plaintiffs have failed to sufficiently allege

6

the circumstances constituting the alleged fraudulent concealment.”). Moreover, the First

7

Amended Complaint does not include the specific content of the alleged conversations, such that

8

Microsoft cannot evaluate what its employees allegedly told Plaintiffs nor whether those alleged

9

statements were false or misleading. See id. Thus, Plaintiffs’ allegations regarding allegedly

10

United States District Court
Northern District of California

11

misleading conversations do not satisfy Rule 9(b). Id.
The lack of detail provided in the First Amended Complaint stands in stark contrast to the

12

allegations that did satisfy Rule 9(b) in In re Animation Workers Antitrust Litig. (“Animation

13

Workers II”), --- F. Supp. 3d ---, No. 14-CV-4062, 2015 WL 4974343, at *9 (N.D. Cal. Aug. 20,

14

2015). The Animation Workers II plaintiffs alleged that the defendants’ human resources

15

departments were exchanging detailed information regarding employees’ compensation levels. Id.

16

at *6. The Animation Workers II plaintiffs further provided specific allegations of the “who, what,

17

where, when, and how” of the misleading conversations the human resources departments then

18

had with defendants, such as that “on August 24, 2009, ILM recruiter Lori Beck emailed Class

19

member Frankie Rodriguez that the ILM offer was ‘based upon a comparable rate to . . . ILM

20

individuals,’ without disclosing that it was based in large part on comparisons exchanged with

21

competing studios.” Animation Workers II, No. 14-CV-4062-LHK, Second Consolidated

22

Amended Class Action Compl., ECF No. 121, ¶ 150. By contrast, Plaintiffs’ allegations in the

23

instant case do not provide the specific dates or even the months in which the alleged

24

conversations occurred, do not identify the parties to the conversations, do not identify the method

25

of communication used, and do not identify the specific content of any alleged conversation.

26

Because Plaintiffs’ allegations do not include “an account of the time, place, and specific content

27

of the false representations as well as the identities of the parties to the misrepresentations,”

28

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Case No. 14-CV-04634-LHK
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1

Plaintiffs have not met the heightened pleading standard of Rule 9(b) as to their alleged

2

conversations with Microsoft employees. See Swartz, 476 F.3d at 764.

3
4

b. Concealment during DOJ proceedings
The Court similarly finds insufficient under Rule 9(b) Plaintiffs’ argument that Microsoft’s

5

conduct during the DOJ investigation was an affirmative act of fraudulent concealment. ECF No.

6

70 at 11. Plaintiffs allege that “Microsoft refused to produce any documents without first securing

7

agreements that the document production would not be publicly filed or disclosed, including

8

requiring that any documents that were publicly filed or disclose[d] would be heavily redacted so

9

as not to publicly reveal the substance of the Secret Agreements and the specific companies
involved.” FAC ¶ 90. Plaintiffs do not cite, and the Court is not aware of, any case holding that

11
United States District Court
Northern District of California

10

agreements with the DOJ to redact the public versions of documents properly produced during a

12

government investigation are acts of fraudulent concealment. Furthermore, under Rule 9(b), “[a]

13

plaintiff must set forth what is false or misleading about a statement, and why it is false.”

14

GlenFed, 42 F.3d at 1548. Plaintiffs here have not alleged that Microsoft’s redactions were in any

15

way false, misleading, or beyond the scope of Microsoft’s agreement with the DOJ to produce

16

documents under seal. Thus, Plaintiffs’ allegation that Microsoft misled Plaintiffs during the DOJ

17

investigation does not satisfy the pleading requirements of Rule 9(b). See id.

18
19

2. Alleged Efforts at Secrecy
Plaintiffs additionally argue that Microsoft’s efforts “to limit access to and circulation of

20

documents reflecting its secret agreements” qualify as an affirmative act of fraudulent

21

concealment. ECF No. 70 at 11. Microsoft argues that these allegations amount to no more than

22

passive concealment, at most. ECF No. 71 at 6.

23

Although Plaintiffs do not cite which allegations in the First Amended Complaint show

24

Microsoft’s efforts to limit access to and circulation of documents reflecting the alleged antitrust

25

violations, the Court presumes Plaintiffs refer to their allegation that “Microsoft took active

26

measures to keep the Secret Agreements secret by, among other things, ensuring that any written

27

memorialization of the Secret Agreements was not widely disseminated or disclosed to any

28

27
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employees other than a limited group of Microsoft’s senior officers.” FAC ¶ 88. This allegation

2

proceeds to allege that Microsoft saved its Hands-Off List in a format that prevented forwarding

3

the document and indicated that the Hands-Off List should not be saved, printed, or emailed. Id.

4

However, Plaintiffs do not make any specific factual allegations that Microsoft avoided discussing

5

the Hands-Off List and the non-solicitation agreements over email.
Instead, Plaintiffs’ specific factual allegations contradict Plaintiffs’ general statements

6
7

about secrecy. The First Amended Complaint excerpts numerous emails from Microsoft

8

employees freely discussing the existence and content of the Hands-Off List both within Microsoft

9

and with other companies. Id. ¶¶ 29, 31, 34, 35, 39, 41, 51, 77, 88 (quoting emails from Microsoft
employees discussing the Hands-Off List). For example, in support of Plaintiffs’ allegation that

11
United States District Court
Northern District of California

10

Microsoft enforced its anti-solicitation agreements, Plaintiffs quote the following email between

12

Microsoft “recruitment managers” discussing the Hands-Off List: “To confirm first, we will not be

13

hiring from, nor rewarding our employees for, hiring employees of partners on our ‘hands off’

14

list.” Id. ¶ 51. As evidence of a non-solicitation agreement with Transmeta, Plaintiffs quote an

15

internal Microsoft email stating that the sender would “notify the rest of the recruiters that

16

Transmeta is now considered hands-off.” Id. ¶ 29. Rather than indicate that the Hands-Off List

17

should be kept secret, these emails show Microsoft employees documenting and readily discussing

18

the existence and content of the Hands-Off List.6
In fact, although Plaintiffs quote from over a dozen emails sent by Microsoft employees

19
20

about the Hands-Off List, Plaintiffs have not identified any email in which a Microsoft employee

21
22
23
24
25
26
27
28

6

Microsoft argues that all of the alleged non-solicitation agreements were unilateral agreements in
which Microsoft agreed not to solicit from its partners in order to “protect Microsoft’s business
partners, customers, vendors, and affiliated companies from Microsoft’s recruiting efforts.” See
ECF No. 67 at 14-16. Several emails quoted in the First Amended Complaint indicate that the
Hands-Off List was a list of Microsoft business partners. For example, the First Amended
Complaints quotes an unidentified Microsoft executive as stating that “[t]he purpose of this list is
an internal record for staffing of [Microsoft’s] non-solicit commitments to partners & customers
[worldwide.]” FAC ¶ 34. The First Amended Complaint also quotes an email from Dell’s CEO to
Microsoft asking to discuss entering a non-solicitation agreement in light of “our partnership.” Id.
As stated above, Plaintiffs also quote an email between Microsoft “recruitment managers”
confirming that “we will not be hiring from, nor rewarding our employees for, hiring employees of
partners on our ‘hands off’ list.” Id. ¶ 51.
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marked an email as confidential, stated that the recipient should not forward or discuss the

2

contents of the email, or took efforts to discuss the alleged agreements in code. The First

3

Amended Complaint contains no examples of efforts by Microsoft personnel to keep discussions

4

about the Hands-Off List confidential.7 If anything, the emails suggest that Microsoft readily

5

discussed its non-solicitation agreements to ensure that Microsoft employees adhered to the No-

6

Hire List. In light of the emails freely discussing the Hands-Off List, the fact that the Hands-Off

7

List itself could not be shared does not amount to affirmative acts by Microsoft to keep the non-

8

solicitation agreements secret.
By comparison, in Animation Workers II, the Court found that the plaintiffs had alleged

9

affirmative acts to keep the conspiracy secret. The Animation Workers II plaintiffs alleged that the

11
United States District Court
Northern District of California

10

defendants took efforts to avoid sending emails related to the non-solicitation agreements, to avoid

12

writing down the details of the non-solicitation agreements, and to eliminate any paper trail

13

relating to the agreements by using a code name for the agreements. 2015 WL 4974343 at *19.

14

These allegations of secrecy in Animation Workers II detailed the specific conduct taken by the

15

defendants to disguise the conspiracy. For example, the complaint in Animation Workers II

16

alleged that one of the defendants, Lucasfilm, “made affirmative efforts to eliminate a paper trail

17

regarding its code-named ‘DNR’ agreements. In an October 2009 ‘Recruiting Staff Meeting

18

Summary,’ Lucasfilm staff emphasized in bolded, all-caps lettering that all discussions of ‘DNR’

19

needed to be conducted over the phone: ‘DNR questions CALL Steve. If you see an email

20

forward to Steve and one of our lawyers.’” Animation Workers II, Second Consolidated Amended

21

Class Action Compl. ¶ 138.
Likewise, in In re Lithium Ion Batteries Antitrust Litig., No. 13-MD-2420-YGR, 2014 WL

22
23

309192 (N.D. Cal. Jan. 21, 2014), the plaintiffs alleged that the defendants “instruct[ed] the

24

recipient of documents or emails to destroy, delete, or discard them after reading, instruct[ed]

25
26
27
28

7

The only example of an effort to keep an email secret is an allegation that Google’s CEO, Eric
Schmidt, labeled a single email discussing Google’s agreements with both eBay and Microsoft
with the words “DO NOT FORWARD.” See FAC ¶ 89. The DOJ ultimately brought lawsuits
alleging antitrust violations against Google and eBay, but not against Microsoft. See ECF No. 70.
29
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personnel to refrain from memorializing conversations, and used code to refer to particular entities

2

or topics.” Id. at *16 (citations omitted). The Lithium Ion plaintiffs supported their allegations by

3

quoting specific examples of the defendants’ affirmative acts to keep the conspiracy secret, such

4

as an email in which the representative of one of the defendants “asked that the recipients of his

5

email . . . ‘destroy this e-mail immediately.’” No. 13-MD-2420-YGR, Second Consolidated

6

Amended Compl., ECF No. 415, ¶ 219.
Plaintiffs here, on the other hand, make no allegations of efforts by Microsoft to eliminate

7
8

a paper trail relating to the alleged non-solicitation agreements. Plaintiffs do not allege that

9

Microsoft used a code name to refer to the agreements, that Microsoft avoided discussing the
agreements over email, or that Microsoft instructed recipients of documents or emails to destroy

11
United States District Court
Northern District of California

10

the documents or emails after reading them. Plaintiffs’ conclusory allegation that Microsoft “took

12

active measures to keep the Secret Agreements secret by . . . ensuring that any written

13

memorialization of the Secret Agreements was not widely disseminated” is belied by Plaintiffs’

14

numerous allegations of emails that Microsoft did not try to keep secret. The First Amended

15

Complaint includes no allegations of specific conduct comparable to that alleged in Animation

16

Workers II and Lithium Ion.8

17
18
19
20
21
22
23
24
25
26
27
28

8

To the contrary, the purported allegations of efforts by Microsoft to keep information about the
Hands-Off List secret more closely resembles the allegations in the original Animation Workers
complaint, which this Court dismissed without prejudice in In re Animation Workers Antitrust
Litig. (“Animation Workers I”), 87 F. Supp. 3d 1195 (N.D. Cal. 2015). In Animation Workers I,
this Court found insufficient to plead affirmative concealment the Animation Workers I plaintiffs’
allegations “that [the defendants’] senior human resources directors and senior management
discussed the conspiracy in small in-person group meetings, avoided memorializing the scheme in
writing, and attempted to keep the conspiracy secret from [the plaintiffs].” 87 F. Supp. 3d at 1215.
The Court acknowledged that the Animation Workers I plaintiffs had made “detailed allegations of
when and where certain Defendants met and conspired,” but the Court concluded that these
allegations showed only that the defendants “engaged in a conspiracy, that ‘by nature [is] selfconcealing.’” Id. (quoting Conmar, 858 F.2d at 505). The Court concluded that the plaintiffs
failed “to aver any affirmative attempts to mislead ‘above and beyond’ the existence of the
conspiracy itself,” and thus the secretive conduct alleged amounted to merely passive
concealment. Id. (citing Conmar, 858 F.2d at 505). So too here, the fact that the Hands-Off List
that embodied Microsoft’s alleged conspiratorial conduct was not distributed does not show
conduct “above and beyond” the existence of the alleged conspiracy itself. The Court dismissed
the complaint in Animation Workers I on April 3, 2015, over a month before Plaintiffs filed their
First Amended Complaint in the instant case.
30
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1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3. Reasonable Reliance on Public Filings
Plaintiffs’ remaining allegation of an affirmative act of concealment is Microsoft’s
allegedly misleading statements in annual SEC filings and company documents that Microsoft’s
hiring and compensation were competitive and that Microsoft obeyed all applicable antitrust laws.
Microsoft argues that these public statements are insufficient for fraudulent concealment because
Plaintiffs could not have reasonably relied upon them.
Plaintiffs do not cite, and the Court is not aware of, any case finding that a defendant’s
statements in routine public filings that the defendant obeys antitrust laws and participates in a
competitive market alone suffice to show fraudulent concealment, absent other evidence that the
defendant attempted to conceal its alleged antitrust behavior. See ECF No. 70 at 11. Rather, in
the Ninth Circuit, an affirmative act of denial of wrongdoing constitutes an affirmative act of
fraudulent concealment only “if the circumstances make the plaintiff’s reliance on the denial
reasonable.” Conmar, 858 F.2d at 505.
Plaintiffs rely solely upon Lithium Ion, 2014 WL 309192, to support their argument that
Microsoft’s allegedly misleading public statements constitute affirmative acts of fraudulent
concealment. However, Lithium Ion did not hold that the defendants’ public, putatively false
statements were sufficient on their own to support an allegation of fraudulent concealment.
Instead, as this Court has previously observed in another case, “[i]t was the combination of those
misleading, pretextual statements and the affirmative efforts taken to destroy evidence of the
conspiracy or otherwise keep the conspiracies secret that supported the respective plaintiffs’
fraudulent concealment allegations.” Animation Workers II, 2015 WL 4974343, at *18.
Similarly, the allegations in Lithium Ion that the defendants attempted to conceal their conspiracy
by destroying documents, instructing employees not to memorialize conversations, and using code
names constituted circumstances that rendered the plaintiffs’ reliance on the defendants’ public
statements reasonable. See Lithium Ion, 2014 WL 309192, at *16 (describing how the Lithium Ion
defendants “instruct[ed] the recipient of documents or emails to destroy, delete, or discard them
after reading, instruct[ed] personnel to refrain from memorializing conversations, and used code to
31
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

refer to particular entities or topics”); see also Conmar, 858 F.2d at 505 (denial of antitrust

2

violations is an affirmative act of fraudulent concealment only “if the circumstances make the

3

plaintiff’s reliance on the denial reasonable”).

4

Similarly, in Animation Workers II, the plaintiffs made ample allegations of affirmative

5

acts of fraudulent concealment that rendered reliance upon the defendants’ allegedly misleading

6

public filings with the SEC reasonable. 2015 WL 4974343, at *10. These included allegations

7

that the Animation Workers II defendants’ Human Resources departments were exchanging

8

voluminous information about salary ranges and bonuses and colluding to fix compensation. Id. at

9

*6-7. For example, the Animation Workers II plaintiffs alleged that the defendants held meetings
at which they “set the parameters of a compensation survey” that “provides wage and salary

11
United States District Court
Northern District of California

10

ranges for the studios’ technical or artistic positions, broken down by position and experience

12

level.” Id. at *6. The Animation Workers II plaintiffs further alleged that after participating in

13

these meetings fixing compensation, defendant Pixar circulated annual “talking points” memos

14

instructing managers on how to explain compensation. Id. at *18-19. The Animation Workers II

15

plaintiffs alleged that Pixar’s “talking points” memos did not mention Pixar’s agreements

16

colluding with Pixar’s competitors to fix salary ranges. Id. at *18-19. The Animation Workers II

17

plaintiffs specifically alleged that the 2007 “talking points” memo instructed managers to explain

18

that “one of the main reasons” compensation increases were low was in order to “fund additional

19

benefit programs,” again without mentioning the collusive agreements to fix salary ranges. Id.

20

The plaintiffs alleged that Pixar’s president similarly sent a company-wide email justifying the

21

modest compensation increases as a result of the company’s construction of a new child-care

22

center. Id.

23

The Animation Workers II plaintiffs additionally alleged in detail that they had discussed

24

their compensation with specific, named individuals, and the plaintiffs provided the dates, method

25

of communication, and content of these conversations. Id. The Animation Workers II plaintiffs

26

alleged that in these specifically identified conversations, the individuals with whom they spoke

27

did not mention the collusive salary agreements. Id. The Animation Workers II plaintiffs alleged

28

32
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

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that the defendants took efforts to avoid sending emails related to the non-solicitation agreements,

2

to avoid writing down the details of the non-solicitation agreements, and to eliminate any paper

3

trail relating to the agreements by using a code name for the agreements. 2015 WL 4974343 at

4

*19. This Court found that the Animation Workers II plaintiffs’ allegations in combination were

5

adequate to allege that the defendants provided pretextual explanations to the plaintiffs. Id. As in

6

Lithium Ion, the Animation Workers II plaintiffs alleged sufficient circumstances to render reliance

7

upon the allegedly misleading SEC filings reasonable.

8

In the instant case, on the other hand, Plaintiffs have not alleged circumstances that would

9

render their reliance on Microsoft’s allegedly misleading public statements reasonable. Plaintiffs’
allegations of allegedly misleading conversations with Microsoft employees and of efforts by

11
United States District Court
Northern District of California

10

Microsoft to conceal the conspiracy during the DOJ investigation do not satisfy Rule 9(b), and

12

Plaintiffs’ allegations of efforts to keep the conspiracy secret by avoiding disseminating

13

information about the Hands-Off List is contradicted by the numerous emails quoted by Plaintiffs

14

in which Microsoft freely discussed the Hands-Off List. See supra. Unlike the plaintiffs in

15

Animation Workers II and Lithium Ion, Plaintiffs here have not alleged that Microsoft used a code

16

name to refer to the alleged anti-solicitation agreements or that Microsoft instructed employees not

17

to discuss the anti-solicitation agreements by email. Plaintiffs have not provided a single example

18

of any Microsoft email that was labeled confidential, nor have Plaintiffs identified any email in

19

which the recipient was instructed to destroy, delete, or not to forward the email. Plaintiffs have

20

not alleged that Microsoft instructed supervisors or Human Resources personnel to respond to

21

inquiries about compensation with a misleading, fraudulent, or pretextual response. Plaintiffs

22

have not alleged that Microsoft’s human resources personnel exchanged compensation range

23

information with competitors. Plaintiffs have not alleged that Microsoft intentionally provided a

24

false justification for why compensation was not higher, or that Microsoft’s supervisors and

25

Human Resources personnel would have known about the effect of the anti-solicitation

26

agreements on compensation.

27
28

Absent any evidence of specific efforts to provide pretextual justifications for
33
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

compensation or to actively prevent disclosure of the agreements, such as that alleged in

2

Animation Workers II and Lithium Ion, Plaintiffs’ remaining allegation that Microsoft represented

3

in public filings that it abides by antitrust laws is inadequate on its own to satisfy Plaintiffs’

4

burden that Microsoft took affirmative acts to fraudulently conceal the alleged conspiracy. See

5

Hexcel, 681 F.3d at 1060 (“[The plaintiff] carries the burden of pleading and proving fraudulent

6

concealment.”); Conmar, 858 F.2d at 505 (denial of antitrust violations is an affirmative act of

7

fraudulent concealment only “if the circumstances make the plaintiff’s reliance on the denial

8

reasonable”).9 Thus, fraudulent concealment does not delay the accrual of Plaintiffs’ claims in this

9

case.
Because Plaintiffs have not shown that either a tolling doctrine or an exception to the

10

United States District Court
Northern District of California

11

default accrual rule should apply, the Court concludes that Plaintiffs’ Sherman Act claim accrued

12

no later than 2009. Therefore, the four-year statute of limitations for the Sherman Act claim

13

expired no later than 2013, and Plaintiffs’ 2014 Sherman Act claim is time barred. The Court now

14

turns to Plaintiffs’ two arguments that an exception to the California default accrual rule should

15

apply to Plaintiffs’ California claims.

16

F. The California “Discovery Rule”

17

Plaintiffs’ first argument for the application of a California accrual rule exception is that

18

the Court should apply the “discovery rule” to Plaintiffs’ UCL claim. ECF No. 70 at 8. The UCL

19

prohibits “any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code

20
21
22
23
24
25
26
27
28

9

Other courts have found that misleading statements constitute affirmative acts of fraudulent
concealment only if Plaintiffs allege actual reliance upon the allegedly misleading statements. See
Block v. Toyota Motor Corp., 5 F. Supp. 3d 1047, 1061 (D. Minn. 2014) (finding no fraudulent
concealment based on allegedly false public statements where plaintiffs did not show that they
were aware of the public statements); In re Magnesium Oxide Antitrust Litig., 2011 WL 5008090,
at *23 (D.N.J. Oct. 20, 2011) (“Implicit in the notion that a plaintiff’s inquiry was misled or
relaxed by an act of concealment is that the plaintiff relied on that act of concealment. . . . Here,
Plaintiffs make no allegations that they were misled by Defendants’ concealment of the alleged
conspiracy and therefore have failed to meet the second element of fraudulent concealment.”). In
the instant case, Plaintiffs have not alleged that they read or were aware of Microsoft’s Form 10-K
SEC filings, let alone that they relied upon any statements made in the Form 10-K filings. See
FAC at 86. Though the Court need not resolve whether Plaintiffs must allege actual reliance, the
Court is skeptical that Plaintiffs could satisfy any such actual reliance requirement.
34
Case No. 14-CV-04634-LHK
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§ 17200. Plaintiffs’ UCL claim alleges that the following alleged conduct by Defendant

2

constituted “unfair and unlawful competition, unfair, and fraudulent business acts and practices

3

within the meaning of [the UCL]”: “(1) creating and carrying out restrictions on trade and

4

commerce; (2) eliminating competition for skilled labor; and (3) fixing compensation of

5

employees at artificially low levels.” FAC ¶ 114. Plaintiffs’ UCL claim additionally alleges that

6

Microsoft engaged in “unfair, unlawful, and or [sic] unconscionable” behavior by entering “Secret

7

Agreements which contained an illegal anti-solicitation agreement and an illegal restrictive hiring

8

agreement to suppress wages of their respective workforce by restricting the ability of their

9

respective employees from attaining employment with the other participants in the Secret
Agreements.” Id. ¶ 112. Plaintiffs allege that “Defendant’s acts were unfair, unlawful, and or

11
United States District Court
Northern District of California

10

unconscionable, both in their own right and because they violated the Sherman Act and the

12

Cartwright Act as well as California’s public policy in favor of competition and employee

13

mobility.” Id. ¶ 113.

14

In California, the discovery rule postpones accrual of a claim until the plaintiff discovers,

15

or has reason to discover, the cause of action.” Clemens v. DaimlerChrysler Corp., 534 F.3d

16

1017, 1024 (9th Cir. 2008) (internal quotation marks omitted). In Aryeh v. Canon Bus. Solutions,

17

Inc., 55 Cal. 4th 1185, 1196 (2013), the California Supreme Court held that the UCL does not

18

categorically forbid the application of the discovery rule under appropriate circumstances. See id.

19

at 1196-97. More specifically, the Aryeh court explained that the “UCL is a chameleon,” and

20

whether the discovery rule may apply is determined by “the nature of the right sued upon.” Id.

21

Under Cal. Code Civ. Proc. § 338(d), the discovery rule applies to fraud actions. See E-Fab, Inc.

22

v. Accountants, Inc. Servs., 153 Cal. App. 4th 1308, 1318 (Ct. App. 2007) (“By statute, the

23

discovery rule applies to fraud actions. (citing Cal. Code Civ. Proc. § 338(d))). Thus, the Aryeh

24

court held that the discovery rule might be appropriate for UCL claims based on allegations of

25

fraud, but the discovery rule does not apply to UCL claims based purely on allegations of unfair

26

competition. See Aryeh, 55 Cal. 4th at 1196 (citing approvingly M&F Fishing, Inc. v. Sea-Pac

27

Ins. Managers, Inc., 202 Cal. App. 4th 1509, 1531–32 (Ct. App. 2012) (nature of UCL unfair

28

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Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

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competition claim rendered discovery rule inappropriate)). For example, the court in M&F

2

Fishing concluded that the discovery rule did not apply to the plaintiff’s UCL claims based on the

3

defendant’s failure to provide statutorily required disclosures because the court found that the

4

failure to provide the disclosures was not fraudulent. 202 Cal. App. 4th at 1531-32.

5

As Plaintiffs acknowledge, see ECF No. 70 at 8 n.1, this Court has already concluded that

6

the discovery rule does not apply to UCL claims based purely on alleged anticompetitive conduct

7

because an allegation purely of anticompetitive conduct is not an allegation based on fraud or

8

misrepresentation. See In re Animation Workers Antitrust Litig. (“Animation Workers I”), 87 F.

9

Supp. 3d 1195, 1210-11 (N.D. Cal. 2015). In Animation Workers I, the plaintiffs based their UCL
claim on the defendants’ “efforts to limit competition for and suppress compensation of their

11
United States District Court
Northern District of California

10

employees” and the defendants’ agreement “to restrict competition for class members’ services

12

through anti-solicitation agreements and agreements to set and fix the compensation of class

13

members.” See Animation Workers I, No. 14-CV-4062-LHK, Consolidated Amended Class

14

Action Compl., ECF No. 63, ¶ 143. The Court concluded that these allegations were allegations

15

purely of anticompetitive conduct and not allegations of fraud. Animation Workers I, 87 F. Supp.

16

3d at 1210-11. Therefore, the Court held that the discovery rule did not apply to the plaintiffs’

17

UCL claim. Id.

18

In this case, the conduct alleged as the basis for Plaintiffs’ UCL claim consists of: “(1)

19

creating and carrying out restrictions on trade and commerce; (2) eliminating competition for

20

skilled labor; and (3) fixing compensation of employees at artificially low levels.” FAC ¶ 114.

21

These allegations are equivalent to the allegations in Animation Workers I that the Animation

22

Workers I defendants took “efforts to limit competition for and suppress compensation of their

23

employees” and “agreed to restrict competition for class members’ services through anti-

24

solicitation agreements and agreements to set and fix the compensation of class members.”

25

Animation Workers I, Consolidated Amended Class Action Compl. ¶ 143. Like the allegations in

26

Animation Workers I, Plaintiffs’ allegations for the UCL claim are purely of anticompetitive

27

behavior.

28

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Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

Although elsewhere in the FAC Plaintiffs allege that Microsoft engaged in fraudulent

2

concealment, Plaintiffs’ UCL claim does not mention fraudulent concealment or any alleged act of

3

fraudulent concealment by Microsoft as a basis for the alleged UCL violation. See FAC ¶¶ 110-17

4

(Plaintiffs’ UCL claim). Indeed, Plaintiffs do not specify any fraudulent conduct by Microsoft

5

that violates the UCL. Furthermore, the Court has already held that Plaintiffs have not sufficiently

6

alleged that Microsoft fraudulently concealed its alleged antitrust violations. See supra. Thus, the

7

First Amended Complaint does not include allegations of fraudulent concealment to support the

8

application of the discovery rule to the UCL claim.

9

As in Animation Workers I, the default accrual rule and not the discovery rule applies to
Plaintiffs’ UCL claim. Under the default accrual rule, the UCL claim accrued no later than 2009,

11
United States District Court
Northern District of California

10

the last year in which Microsoft allegedly entered into an agreement that injured Plaintiffs. See

12

Pooshs, 51 Cal. 4th at 797 (holding that under the default accrual rule in California, a claim

13

accrues “when [it] is complete with all of its elements—those elements being wrongdoing, harm,

14

and causation”)

15

G. The California “Continuous Accrual” Rule

16

Plaintiffs finally argue that the Court should apply “continuous accrual” to all of Plaintiffs’

17

state law claims. ECF No. 70 at 10. Under the “continuous accrual” doctrine, “a series of wrongs

18

or injuries may be viewed as each triggering its own limitations period.” Aryeh, 55 Cal. 4th at

19

1192. “[S]eparate, recurring invasions of the same right can each trigger their own statute of

20

limitations.” Id. at 1198. “Generally speaking, continuous accrual applies whenever there is a

21

continuing or recurring obligation: ‘When an obligation or liability arises on a recurring basis, a

22

cause of action accrues each time a wrongful act occurs, triggering a new limitations period.’” Id.

23

at 1199 (quoting Hogar Dulce Hogar v. Cmty. Dev. Comm’n, 110 Cal. Appl. 4th 1288, 1295

24

(2003)). Accordingly, California courts have held that disputes regarding monthly billing and

25

payments qualify for continuous accrual, with each month triggering a new limitations period.

26

See, e.g., Aryeh, 55 Cal. 4th at 1200-01 (allegations of unlawful charges in monthly bills were

27

recurring obligations); Tsemetzin v. Coast Fed’l Sav. & Loan Ass’n, 57 Cal. App. 4th 1334, 1344

28

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Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

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(1997) (periodic monthly rent payments owed were a recurring obligation); Armstrong Petroleum

2

Corp. v. Tri-Valley Oil & Gas Co., 116 Cal. App. 4th 1375, 1388-89 (2004) (monthly payments on

3

a gas and oil lease created a recurring obligation). However, if the alleged recurring injuries

4

during the limitations period “arose out of a single transaction” that occurred before the limitations

5

period, the continuous accrual doctrine does not apply. State ex rel. Metz v. C.C.C. Info. Servs.,

6

Inc., 149 Cal. App. 4th 402, 418 (2007). Thus, allegedly fraudulent statements and admissions

7

following an inaccurate valuation in an insurance claim did not trigger new limitations periods

8

under the continuous accrual doctrine because all of the false statements arose out of the same

9

insurance valuation, which occurred before the limitations period. Id.

10

In the instant case, Plaintiffs allege that Microsoft had “a continuing obligation not to

United States District Court
Northern District of California

11

collude with competitors to restrict free competition for engineers and managers.” ECF No. 70 at

12

10. However, because the First Amended Complaint does not allege any specific new agreements

13

Microsoft entered into after 2009, the First Amended Complaint does not specify any “separate,

14

recurring invasions” of Plaintiffs’ rights after 2009. See Aryeh, 55 Cal. 4th at 1198. The First

15

Amended Complaint alleges no new overt acts after 2009. Without separate wrongful acts to

16

trigger the statute of limitations, continuous accrual does not apply. See id. at 1192, 1198.

17

Furthermore, Microsoft’s continuing obligation to avoid anticompetitive behavior is not a

18

periodic, recurring obligation such as a monthly payment or monthly bill, and as such the

19

continuous accrual doctrine does not apply. See Metz, 149 Cal. App. 4th at 418 (holding that

20

continuous accrual does not apply where “[the plaintiff’s] action does not involve a recurring

21

obligation or any such period payment obligations”); see also Aryeh, 55 Cal. 4th at 1200-01

22

(applying continuous accrual to dispute over monthly bills); Tsemetzin, 57 Cal. App. 4th at 1344

23

(applying continuous accrual to dispute over monthly rent payments); Armstrong Petroleum, 116

24

Cal. App. 4th at 1388-89 (applying continuous accrual to dispute over monthly lease payments).

25

The First Amended Complaint contains no allegation of unlawful behavior by Microsoft with

26

regards to any such periodic transaction. See FAC.

27
28

Because Plaintiffs’ claims accrued no later than 2009 and were subject to 4-year statutes of
38
Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

1

limitations, and because Plaintiffs have not shown that an exception to the statutes of limitations

2

or tolling doctrine should apply, Plaintiffs’ claims are all untimely. Therefore, the Court

3

GRANTS Defendant Microsoft’s motion to dismiss Plaintiffs’ First Amended Complaint.

4

H. Leave to Amend

5

The Court now turns to whether to grant Plaintiffs leave to amend their complaint. The

6

Court may deny leave to amend a complaint due to “undue delay, bad faith or dilatory motive on

7

the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

8

undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of

9

amendment.” See Leadsinger, 512 F.3d at 532.
In the instant case, the Court previously dismissed Plaintiffs’ claims as untimely and gave

10

United States District Court
Northern District of California

11

Plaintiffs an opportunity to amend their complaint to address the Court’s timeliness concerns. See

12

Ryan, 2015 WL 1738352, at *17. The Court’s previous order stated that “failure to cure the

13

deficiencies identified in this Order will result in a dismissal with prejudice.” Id. Plaintiffs’ First

14

Amended Complaint has failed to cure the timeliness deficiencies. Giving Plaintiffs an additional

15

opportunity to amend their complaint to address the statutes of limitations would cause undue

16

delay, would unduly prejudice Microsoft by requiring Microsoft to file repeated motions to

17

dismiss on timeliness grounds, and would be futile. Therefore, the Court’s dismissal of Plaintiffs’

18

First Amended Complaint is with prejudice. See Leadsinger, 512 F.3d at 532.

19

IV.

20

CONCLUSION
For the foregoing reasons, Microsoft’s motion to dismiss Plaintiffs’ First Amended

21

Complaint is GRANTED with prejudice.

22

IT IS SO ORDERED.

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24
25
26

Dated: November 23, 2015
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 14-CV-04634-LHK
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE