Big game poachers return to tech

By Ed Frauenheim, CNET News.com
02 August 2005 10:49 AM
Tags: poachers, suit, return, european union, sue, to, big, sued
The ongoing legal spat over Google's hiring of a Microsoft executive is a reminder that "poaching" of top employees is alive and well.

But it's risky business in an era of employment agreements with non-compete clauses and other restrictions, experts said.

Tim Farrelly, president of San Francisco-based recruiting firm Coit Staffing, said that compared with the late 1990s, the practice has decreased, with companies becoming more selective. "They're not just taking anybody anymore," he said. "You really have to come to the table with a solid skill-set."

The issue of recruiting employees from under a competitor's nose ââ,¬" and the legal ramifications of doing so ââ,¬" resurfaced last week with the tussle involving Microsoft, its former executive Kai-Fu Lee, and Google.

Google announced it had hired Lee to lead a new research and development centre in China and serve as president of its Chinese operations. The same day, Microsoft sued both Google and Lee, who was a vice-president at Microsoft and played a key role in its operations in China.

The suit, filed in a Washington state court, claims Lee is breaking a non-compete agreement in taking his new job, and it accuses Google of encouraging Lee to violate promises made to Microsoft.

"Lee entered into a valid and binding agreement with Microsoft in which he promised that he would not, for a period of one year following termination of his employment with Microsoft, compete with Microsoft in certain, defined ways," the suit states.

Google and Lee fought back last week. "This lawsuit is a charade," They said in court documents filed prior to a Wednesday hearing in Seattle. "Indeed, Microsoft executives admitted to Lee that their real intent is to scare other Microsoft employees into remaining at the company."

In another filing made before Wednesday's hearing, Lee claims that in a 15 July meeting, Microsoft chairman Bill Gates told him, "Kai-Fu, [chief executive] Steve [Ballmer] is definitely going to sue you and Google over this. He has been looking for something just like this, someone at a VP level to go to Google. We need to do this to stop Google."

Last Thursday, Google asked a California court to declare Microsoft's non-compete provision invalid.

Google appears to be taking advantage of a California rule that frowns on non-compete contract clauses, and a war over courtroom jurisdiction could loom. Google representatives did not return requests for comment.

Long, sordid history
This talent tiff among tech-world powerhouses has many precedents. This is not, for example, the first time Microsoft has turned to legal channels to pursue former employees it felt were unfairly competing.

Several years ago, the company sued when former executive Tod Nielsen and a number of ex-Microsoft employees went to work for Crossgain, a start-up focused on allowing business applications to run over the Web.

Crossgain eventually disassociated itself from a number of Microsoft workers that were still bound to non-compete agreements. Among the other ex-Microsoft employees who were forced to step down, at least temporarily, were Nielsen and Adam Bosworth, a founder of Crossgain who eventually joined Google.

And Microsoft has been on the other side of things. In 1997, Borland sued the software giant, claiming it had hired 34 Borland employees over three years in an attempt to put Borland out of business.

Earlier that year, database software company Informix tried to obtain a restraining order against Oracle after 11 of its software engineers left for Oracle. And also in the late 1990s, SAP cried foul that 27 of its key executives walked out for rival Siebel.

There are signs, including a revived start-up scene, that competition for employees in the tech world is heating up. But it's difficult to find hard numbers on the practice of actively tempting workers at rival companies.

If anything, the amount of talent snatching in the software field has declined from a decade ago, said Jack Cage, senior client partner at executive search firm Korn/Ferry International.

Cage, who specialises in the software and tech services arenas, said one factor is the consolidation of the software industry during the past 10 years or so from some 500 public companies to fewer than 100. He also said companies aren't as likely to raid one another when there are so many people looking for work ââ,¬" such as the thousands laid off after the Oracle-PeopleSoft merger.

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