Verified Shareholder Derivative Complaint

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BOTTINI & BOTTINI, INC.
Francis A. Bottini, Jr. (175783)
Albert Y. Chang (296065)
Yury A. Kolesnikov (271173)
7817 Ivanhoe Avenue, Suite 102
La Jolla, California 92037
Tel: (858) 914-2001
Fax: (858) 914-2002
fbottini@bottinilaw.com
achang@bottinilaw.com
ykolesnikov@bottinilaw.com

Attorneys for Plaintiff R. Andre Klein




UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

R. ANDRE KLEIN, on behalf of himself and all
other stockholders of APPLE INC.,

Plaintiff,
vs.

TIMOTHY D. COOK, WILLIAM V.
CAMPBELL, MILLARD (MICKEY)
DREXLER, ARTHUR D. LEVINSON, ROBERT
A. IGER, ANDREA JUNG, FRED D.
ANDERSON, ESTATE OF STEVEN P. JOBS,
deceased, and DOES 1-30, inclusive,

Defendants,
- and
APPLE INC., a California corporation,

Nominal Defendant.
Case No.

VERIFIED SHAREHOLDER
DERIVATIVE COMPLAINT FOR:

1. BREACH OF FIDUCIARY DUTY;

2. GROSS MISMANAGEMENT;

3. WASTE OF CORPORATE
ASSETS; AND

4. BREACH OF THE DUTY OF
HONEST SERVICES

DEMAND FOR JURY TRIAL
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Plaintiff R. Andre Klein, derivatively on behalf of Apple Inc. (Apple or the Company),
alleges the following based upon the investigation of Plaintiff and his counsel, including a review of
legal and regulatory filings, press releases, and media reports about Apple.
NATURE OF THE ACTION
1. This is a shareholder derivative action seeking to remedy the wrongdoing committed
by Apples senior directors and officers who have caused millions of dollars in damages to Apple
and its shareholders. Plaintiff asserts claims under federal law for violations of Section 14(a) of the
Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C. 78n(a), and under state law for
breach of fiduciary duty, gross mismanagement, corporate waste, and breach of the duty of honest
services.
2. Apples co-founder and former Chief Executive Officer (CEO), Steve Jobs (now
deceased), and other Apple executives and directors entered into unlawful, anti-competitive non-
solicitation agreements with executives at other companies, such as Adobe Systems (Adobe),
Google, Inc. (Google), and Intel Corporation (Intel). Pursuant to these agreements, which
violated United States antitrust laws, the Individual Defendants caused Apple to agree not to recruit
the employees of other companies, and vice versa. In an order dated August 8, 2014 in In re High-
Tech Employee Antitrust Litigation, No. 11-cv-2509 LHK (N.D. Cal.), the Honorable Lucy H. Koh
rejected a proposed $324.5 million settlement as inadequate and unfair based in part on the strength
of the evidence against Jobs. Devoting five pages of her 32-page order to discussing the evidence
against Jobs, Judge Koh identified him as a, if not the, central figure in the alleged conspiracy to
engage in anti-poaching practices because [s]everal witnesses, in their depositions, testified to
[Jobss] role in the anti-solicitation agreements.
3. In California, non-compete agreements are generally void and unenforceable, in
addition to potentially violating antitrust laws.
4. The United States Department of Justice (DOJ) began investigating Apples hiring
practices in 2009. The DOJ filed a complaint against Apple, Adobe, Google, Intel, Intuit, and Pixar
on September 24, 2010, alleging that these companies private agreements restrained trade, which
was per se unlawful under the antitrust laws. The DOJ found the agreements facially
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anticompetitive because they eliminated a significant form of competition to attract high tech
employees, and, overall, substantially diminished competition to the detriment of the affected
employees who were likely deprived of competitively important information and access to better
job opportunities. The DOJ stated that the agreements disrupted the normal price-setting
mechanisms that apply in the labor setting.
5. The DOJ announced a settlement of the action on its website on September 24,
2010. (A final judgment in the action was entered on March 17, 2011.) In its September 24, 2010
press release announcing the settlement, the DOJ noted:
The agreements challenged here restrained competition for affected
employees without any procompetitive justification and distorted the
competitive process, said Molly S. Boast, Deputy Assistant Attorney
General in the Department of Justices Antitrust Division.
6. The DOJs press release further stated:
In the high technology sector, there is a strong demand for employees
with advanced or specialized skills, the department said. One of the
principal means by which high tech companies recruit these types of
employees is to solicit them directly from other companies in a
process referred to as, cold calling. This form of competition, when
unrestrained, results in better career opportunities, the department
said.

According to the complaint, the companies engaged in a practice of
agreeing not to cold call any employee at the other company. The
complaint indicates that the agreements were formed and actively
managed by senior executives of these companies.
7. Despite the DOJs investigation, Apple did not disclose to its shareholders the details
of the DOJs investigation. None of Apples proxy statements, quarterly filings, and annual filings
disclosed the DOJ investigation, the settlement reached in September of 2010, or the final judgment
signed on March 17, 2011. The Companys proxy statements filed on January 11, 2011, January 9,
2012, January 7, 2013, and January 10, 2014 also failed to disclose the DOJ investigation,
settlement, and final judgment. Similarly, the Companys 8K, 10Q, and 10K filings from October
2010 to the present do not mention the DOJs investigation, settlement, or final judgment.
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8. Documents in the public domain confirm the existence of illegal non-solicitation
agreements between Apple and other companies and demonstrate explicit agreements to enter into
illegal agreements.
9. In February 2005, Jobs demanded that Sergey Brin, Googles co-founder, instruct his
employees to stop recruiting from Apple. According to Brin, Jobs told him, If you hire a single
one of these people that means war (emphasis added) (Figure 1).

Figure 1


10. The next day, Bill Campbell (member of Apples Board of Directors and Googles
then-Senior Advisor and mentor to Schmidt) e-mailed Jobs to confirm that Schmidt got directly
involved and firmly stopped all efforts to recruit anyone from Apple (emphasis added).
Campbell added that Jobs will be rightfully pissed to hear that Google had made an offer to an
Apple employee (Figure 2).





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Figure 2

11. In March 2007, Eric Schmidt, then Googles CEO and member of Apples Board of
Directors, e-mailed Jobs to let him know that Google would terminate within the hour a recruiter
who had contacted an Apple employee in violation of the do not call policy between Apple and
Google. Schmidt apologized, adding: Should this ever happen again please let me know
immediately and we will handle. Thanks!! Eric. Jobs then forwarded this e-mail to Danielle
Lambert, Apples Vice President of Human Resources, adding a smiley face (Figure 3).
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Figure 3

12. An August 2007 e-mail reveals that Jobs was made aware of the illegal nature of the
non-solicitation agreements. In an e-mail from Ed Colliganformer President and CEO of Palm,
Inc.to Jobs, Colligan stated, Your proposal that we agree that neither company will hire the
others employees . . . is not only wrong, it is likely illegal (emphasis added) (Figure 4).
Colligans e-mail later revealed that Apple had threatened Palm with a patent lawsuit if an Apple
employee were to accept a job offer at Palm.




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Figure 4


13. Jobss conduct is a reminder that even widely-respected businessmen can knowingly
commit unlawful acts in the zealous pursuit of profits. In this case, Jobs and the other Individual
Defendants knowingly caused Apple to enter into agreements that violated California law and U.S.
antitrust laws. Jobs was a walking antitrust violation, said Herbert Hovenkamp, a professor at the
University of Iowa College of Law and an expert in antitrust law. Im simply astounded by the
risks he seemed willing to take. See Paul M. Barrett and Brad Stone, Apple, Google, and the
Hubris of Silicon Valleys Hiring Conspiracy. BLOOMBERG, May 1, 2014. In the August 8, 2014
order denying preliminary approval of the $324.5 million proposed settlement in High-Tech
Employee Antitrust Litigation, Judge Koh set forth evidence showing that Jobs played a central
role in enforcing the [anti-solicitation] agreements after brokering them. Specifically, Judge Koh
identified e-mails from both Jobs and Campbell showing their direct, hands-on involvement in the
anti-poaching practices.
14. While the Individual Defendants caused Apple to violate antitrust laws, they also
caused Apple to issue materially false and misleading proxy statements. Specifically, the
Individual Defendants caused Apple to omit from its 2012, 2013, and 2014 proxy statements
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information regarding their misconduct in connection with Apples anti-poaching practices.
Instead, these proxy statements touted the Individual Defendants significant and diverse
management experience, including strategic and financial planning, public company financial
reporting, compliance, risk management and leadership development. But these proxy statements
failed to disclose, among other things, that the Individual Defendants caused Apple to engage in
anti-poaching practices, that the DOJ had been investigating Apples potential violations of antitrust
laws, and that the Individual Defendants conduct may lead to criminal changes and civil liability
against and cause substantial damages to Apple. Based on the false and misleading information in
those proxy statements, Apple recommended that the Individual Defendants be re-elected as Apple
directors year after year. As a result of their recommendations, the Individual Defendants were re-
elected to Apples Board. Had the true information been revealed or disclosed to shareholders in
Apples proxy statements in 2012, 2013, and 2014, such information would have been material due
to the substantial likelihood that a reasonable shareholder would consider such information
important in deciding how to vote. As discussed in detail below, the Individual Defendants violated
14(a) of the Exchange Act.
JURISDICTION AND VENUE
15. The Court has subject-matter jurisdiction in this action arising under Article III of
the United States Constitution and 28 U.S.C. 1331 because of claims arising under Section 14(a)
of the Exchange Act, 15 U.S.C. 78n(a), and SEC regulation 14a-9 promulgated thereunder. The
Court has exclusive jurisdiction under Section 27 of the Exchange Act, 15 U.S.C. 78aa. The
Court also has supplemental jurisdiction under 28 U.S.C. 1367 over Plaintiffs state-law claims.
16. Venue is proper pursuant to the Exchange Act. Apples headquarters are located in
Cupertino, California, and the false statements were made in this District. Defendants breaches of
fiduciary duties, gross mismanagement, and waste of corporate assets occurred in this District.
Each Defendant has sufficient contacts with California as a Director and/or Officer of Apple to
make proper the exercise of personal jurisdiction over them.
17. Venue is proper in this District pursuant to 28 U.S.C. 1391 because Apple
maintains its principal executive offices in this District, one or more of the defendants resides in
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this District, a substantial portion of the transactions and wrongs complained of hereinincluding
the Individual Defendants primary participation in the wrongful actsoccurred in this District, and
defendants have received substantial compensation in this District by doing business here and
engaging in numerous activities that had an effect in this District.
THE PARTIES
I. Plaintiff
18. Plaintiff R. Andre Klein is now and has continuously been a shareholder of Apple, at
the time of the transactions that form the basis of this Complaint to the present. Plaintiff brings this
action derivatively on behalf of Apple.
II. Nominal Defendant
19. Nominal Defendant Apple Inc. is a California corporation headquartered in
Cupertino, California. The Companys stock is publicly traded on The NASDAQ under ticker
symbol AAPL. The Company was formerly known as Apple Computer, Inc. but changed its
name to Apple Inc. on January 9, 2007 by amending Article I of its Restated Articles of
Incorporation.
III. The Individual Defendants
A. Defendant Cook
20. Defendant Timothy D. Cook (Cook) has been Apples CEO since August 2011
and a member of its Board of Directors since 2005. Before being named CEO, he was Apples
Chief Operating Officer from October 2005 until August 2011; Executive Vice President of
Worldwide Sales and Operations from January 2002 to October 2005; and Senior Vice President of
Worldwide Operations from February 1998 to January 2002.
21. Defendant Cook has also been a member of Nike, Inc. (Nike)s Board of Directors
since 2005. He currently serves as Chair of the Boards Compensation Committee and a member of
the Nominating and Corporate Governance Committee. In 2009, Apples Hands Off (Do Not Call
List) included not only technology companies, but also companies such as Nike. The list reads,
Nike (Common board members), which suggests that Cooks concurrent role on both the Boards
of Apple and Nike facilitated the illegal non-solicitation agreement between the companies.
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22. Defendant Cook and Jobs had a very close relationship because Cook had executed
Jobss vision for Apple since 1998. Steve Jobsan authorized biography of Jobs written by Walter
Issacsonpaints a picture of Cook as Jobs[s] ideal counterpart because he was calm, decisive and
didnt want to be in the public eye. Cook joined Apple in 1998 and quickly earned the trust of
Jobs, who had recently taken back control of the company he helped create after being ousted 12
years earlier. When Jobs first returned to Apple in 1997, he oversaw Apples supply chain, though
he handed that facet of the business over to Cook to focus on a broader strategy for the company.
I trusted him to know exactly what to do, Jobs told Isaacson, indicating that Jobs and Cook
shared the same vision, allowing them to work together at a high strategic level.
1

B. Defendant Campbell
23. Defendant William (Bill) V. Campbell (Campbell) served as Chairman of
Apples Board of Directors from August 1998 until his sudden resignation on July 17, 2014, and
was an executive advisor to Jobs during his life. Campbell was Jobss neighbor. He has also been
a member of the Boards Audit and Finance Committee since August 1997 and Compensation
Committee since August 2001. Campbell has a long history with, and strong ties to, Apple. He
joined Apple as Vice President of Marketing in July 1983 and added the title of Vice President of
Sales in January 1984. He became Executive Vice President in September 1984, during which his
responsibilities expanded to include distribution, service, and support. He was named Group
Executive of the United States in June 1985. Campbell founded Claris Corporation in 1987,
serving as its President and CEO until Apple acquired it in 1990.
24. Defendant Campbell is also Chairman of Intuit, Inc. (Intuit), where he was
President and CEO from April 1994 to July 1998, and Interim CEO from September 1999 to
January 2000. In 2009, Apples Hands Off (Do Not Call List) included Intuit. The list reads,
Intuit (Common board members), which suggests that Campbells concurrent role on both the
Boards of Apple and Intuit facilitated the illegal non-solicitation agreement between the companies.

1
Mikey Campbell, Steve Jobs trusted Tim Cook to know exactly what to do, APPLE
INSIDER, Oct. 21, 2011, available at http://appleinsider.com/articles/11/10/21/jobs_trusted_cook_
to_know_ exactly_what_to_do (last visited Aug. 7, 2014).
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In July 2013, Intuit agreed to pay $11 million to settle the claims against it in the High-Tech
Employee Action.
25. Defendant Campbell was also Googles Senior Advisor and consigliere to Eric
SchmidtGoogles current Executive Chairman and former CEO until 2010.
2
Campbell advised
Google co-founders Sergey Brin and Larry Page to hire Schmidt as Googles CEO in 2001.
Schmidt stated, [Campbells] contribution to Google - it is literally not possible to overstate. He
essentially architected the organizational structure.
3
Apple and Intuit were both on Googles
Special Agreement Hiring Policy, Protocol for Do Not Cold Call and Sensitive Companies
list, effectively March 6, 2005 and April 10, 2006, respectively. Google was similarly on Apples
Hands Off (Do Not Call List) in 2009. In April 2014, Apple, Google, Intel and Adobe agreed to
settle the claims against them in the High-Tech Employee Action for what is reported to be $324
million.
26. Campbell was part of a small group of intertwining high-level executives in Silicon
Valley that negotiated the illegal non-solicitation agreements between Apple, Google, Intel, and
Intuit, among other companies. For example: (1) Campbell informed Jobs that Eric Schmidt told
me that he got directly involved and firmly stopped all efforts to recruit anyone from Apple; (2)
Campbell suggested that Google agree to enter into an illegal non-solicitation agreement with Intuit,
of which Campbell was Chairman of the Board; (3) Campbell e-mailed Googles co-founder Sergey
Brin to report, Steve Jobs called me again and is pissed that we are still recruiting his browser
guy; (4) Schmidt e-mailed Campbell indicating that he directed a for-cause termination of another
Google recruiter who had attempted to recruit an executive of eBay, which was on Googles do-not-
cold-call list; and (5) Campbell enforced the Google-Intel agreement when he agreed by e-mail with
Googles executives that they should call Paul Otellini (CEO of Intel and member of Googles
Board of Directors) before making an offer to an Intel employee.

2
Jennifer Reingold, The Secret Coach, CNN MONEY, July 21, 2008, available at
http://www.kellogg.northwestern.edu/faculty/uzzi/ftp/teaching%20materials/recent%20articles/Net
works/The%20secret%20coach%20Fortune.pdf (last visited Aug. 7, 2014).
3
Id.
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C. Defendant Drexler
27. Defendant Millard ("Mickey") Drexler ("Drexler") has been a Member of Apple's
Board of Directors since 1999 and the Board's Compensation Committee since November 2002.
Drexler and Jobs had a close working relationship. Drexler helped design the layout of the Apple
stores seen around the world. At the time of Jobs[s] death in October [2011], the pair had worked
together for more than a decade, with each serving on each other's board, sharing advice and
insights.
28. Defendant Drexler has also been the CEO and Chairman of J.Crews Board of
Directors since 2003. In 2009, Apple's Hands Off (Do Not Call List) not only included
technology companies but other companies, such as J.Crew. The list reads, JCrew (Common
board members), which suggests that Drexlers concurrent role as Chairman on both the Boards of
Apple and J.Crew facilitated the illegal non-solicitation agreement between the companies.
29. Before J.Crew, Defendant Drexler was the CEO of The Gap, Inc. (Gap) from 1995
until 2002, and Gaps President from 1987 to 1995. In 1999, Jobs tapped Drexler to build a retail
presence for Apple. At the time, trying to sell computers in a lust-worthy retail environment was
presumed ridiculous, so Jobs tracked down his most important weapon, Drexler, who was
considered the smartest executive in retail. When Drexler joined Apples Board in 1999, Jobs
announced, Weve got a great board and Mickeys going to make it even better.
30. The working relationship between Defendant Drexler and Jobs expanded when Jobs
joined Gap's Board later in 1999 during Drexlers leadership at the company. Drexler and Jobs
served on Gap's Board together for three years until 2002. It was Jobs who informed Drexler that
he was about to be fired from Gap in May 2002. He was so empathetic with me when I got fired,
cause he was on the Gap board, Drexler recalled. And he said, It happened to me. I feel
badly for you in reference to the Apple Boards decision to oust him from the Company in 1985.
In 2012, after Jobs[s] death, Drexler offered an insiders perspective on Jobs[s] vision, suggesting
that the two remained close until the end of Jobs[s] life. Speaking at an Innovation Uncensored
conference, he stated, Look at the car industry; its a tragedy in America. Who is designing the
cars? [Jobss] dream before he died was to design an iCar.
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D. Defendant Levinson
31. Defendant Arthur D. Levinson (Levinson) has been Chairman of Apples Board of
Directors since November 2011, replacing Jobs upon his death; Co-Lead Director of the Board
since 2005; and a member of the Board since 2000. He was a member of the Boards Audit
Committee since 2000 and a member of the Boards Compensation Committee from August 2001
through 2003. Levinson was a close friend and colleague of Jobs.
4
Jobs asked Levinson to join
Apples Board when Levinson was Chairman and CEO of Genentech Inc. (Genentech), a
biotechnology corporation, and has been one of the Companys most visible leaders for a long
time.
5

32. Defendant Levinson has also been Chairman of Genentechs Board of Directors
since 1999 and was its CEO between 1995 and 1999. Levinson has therefore concurrently served
on the boards of Apple and Genentech for 15 years. In 2009, Apples Hands Off (Do Not Call
List) not only included technology companies but other companies, such as Genentech. The list
reads, Genentech (CEO sits on our board), which suggests that Levinsons concurrent role as on
both the Boards of Apple and Genentech facilitated the illegal non-solicitation agreement between
the companies.
33. Levinson has a long history and close ties with Google. Levinson is a founding
investor and the current CEO of Calico, an independent biotech company and Google venture,
established in 2013. Levinson was also a member of Googles Board of Directors from 2004 to
2009 while he was a Director of Apple and Genentech. Apple and Genentech were both on
Googles Special Agreement Hiring Policy, Protocol for Do Not Cold Call and Sensitive
Companies list, effectively March 6, 2005 and April 10, 2006, respectively. Google was similarly
on Apples Hands Off (Do Not Call List) in 2009.

4
Kurt Wagner, Art Levinson, Apples Chairman, Talks Life After Steve Jobs, CNN MONEY,
Feb. 20, 2013, available at http://tech.fortune.cnn.com/2013/02/20/apples-chairman-talks-life-after-
steve/ (last visited Aug. 7, 2014).
5
Ben Parr, Meet Art Levinson, Apples New Chairman, MASHABLE, Nov. 14, 2011,
available at http://mashable.com/2011/11/15/arthur-levinson-apple/ (last visited Aug. 7, 2014).
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34. Levinson and Eric SchmidtGoogles current Executive Chairman and then-CEO
served on the boards of Apple and Google together from 2006 to 2009. In 2009, the FTC launched
an investigation into whether Levinsons and Schmidts membership on the two boards violated
antitrust laws. Facing a federal probe, Schmidt resigned from Apples Board in August 2009, and
Levinson resigned from Googles Board in October 2009. When Levinson resigned from Googles
Board, Schmidt stated, Art [Levinson] has been a key part of Googles success these past five
years, offering unvarnished advice and vital counsel on every big issue and opportunity Google has
faced.
35. Lucy P. Marcus, CEO of Marcus Venture Consulting and an expert on corporate
governance and board ethics, said of Levinsons dual role as Apple Director and Calicos CEO:
There is something about this that feels uncomfortable . . . If there is a conflict of interest,
Levinson would have to step out of Apples boardroom during those discussions.
6
Marcus
comment echoes concerns surrounding illegal non-solicitation agreements made possible by board
intermixing.
E. Defendant Iger
36. Defendant Robert A. Iger (Iger) has been a member of Apples Board of Directors
since November 2011. He has also been the Chairman and CEO of The Walt Disney Company
(Disney) since 2012 and its President and CEO since 2005. He was its Chief Operating Officer
from 2000 to 2005. Disney acquired Pixar in 2006. Pixar was established in 1979 as part of the
computer division of Lucasfilm before it spun out as a corporation in 1986 with funding by Jobs,
who became its majority shareholder.
37. Iger and Jobs developed a friendship over the years that deepened when Disney
acquired Pixar. In March 2005, when Iger found out he would become the next CEO of Disney but
before it was made public, he called his family and then Jobs. Iger said, I didnt know him very
well at the time. But there was something that struck me that it would be important to tell him

6
Sam Gustin, Googles Calico Could Pose a Conflict for Apple Chairman Arthur Levinson,
TIME, Sept. 18, 2013, available at business.time.com/2013/09/18/googles-calico-could-pose-a-
conflict-for-apple-chairman-arthur-levinson/ (last visited Aug. 7, 2014).
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before the world knew.
7
Iger worked closely with Jobs, first securing the rights for distribution of
Disney/ABC Television Group programming in Apple iTunes and later spearheading Disneys $7.4
billion acquisition of Pixar when Jobs was its CEO. The acquisition solidified Igers and Jobss
friendship and turned Jobs into Disneys largest shareholder with a 7.4 percent stake and seat on its
Board of Directors.
8
During Jobss lifetime, Iger would call Jobs on Saturdays to see if a Disney
movie Jobs saw the night before had suckeda phrase Jobs was not afraid to use. When Jobs
died, Iger released this statement: Jobs was a great friend as well as a trusted advisor . . . Disney
has lost a member of our family, and I have lost a great friend.
38. Defendants Cook, Campbell, Levinson, Iger, Jung, Anderson, and Jobs are
collectively referred to as the Individual Defendants. The Individual Defendants and Apple are
sometimes collectively referred to as Defendants.
F. Defendant Jung
39. Defendant Andrea Jung (Jung) is a Director of Apple and has been a director since
January 2008. Jung was Apples co-lead director from 2009 to 2011. Jung knowingly or recklessly
approved Apples anti-competitive no poaching policies, despite knowledge that such agreements
were unlawful and would subject Apple to significant harm.
G. Defendant Anderson
40. Defendant Fred D. Anderson (Anderson) was an Apple Director from June 2004
to October 2006, and served as Apples Executive Vice President and Chief Financial Officer from
April 1996 to June 2004. Anderson knowingly or recklessly approved Apples anti-competitive no
poaching policies, despite knowledge that such agreements were unlawful and would subject
Apple to significant harm.

7
Brook Barnes, Iger on Steve Jobs: He Pushed You, THE NEW YORK TIMES, Oct. 6,
2011, available at http://mediadecoder.blogs.nytimes.com/2011/10/06/iger-on-steve-jobs-he-
pushed-you/?_php=true&_type=blogs&_r=0 (last visited Aug. 7, 2014).
8
Kim Herrera, Apple Leadership Post-Steve Jobs: What Art Levinson & Bob Igers Bring to
the Board, ARRIVE PREPARED, Nov. 16, 2011, available at http://blog.highbeambusiness.com /2011
/11/apple-leadership-post-steve-jobs-what-art-levinson-bob-iger%E2%80%99s-bring-to-the-board/
(Aug. 7, 2014).
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H. Defendant Jobs
41. Defendant the Estate of Steven P. Jobs, deceased (Jobs) is Steve Jobss estate.
Jobs was a co-founder of Apple and served as an executive officer and director of Apple for most of
the Companys existence, up until his death on October 5, 2011. While serving as Chief Executive
Officer and a director of Apple, Jobs personally spear-headed the unlawful anti-poaching
agreements described herein, despite knowing or recklessly disregarding the fact that the
agreements were unlawful and would expose Apple to significant liability and damages. The
claims asserted herein against Jobss estate are brought only against the insurance companies that
maintained the applicable directors and officers liability policies that covered Jobs during the
applicable time he served as an executive officer and director of Apple. Plaintiff seeks only a
recovery up to the applicable limits of such policies, and does not seek any amounts from the Estate
of Steven P. Jobs. In accordance with applicable California law, the summons and complaint in this
case will be served on such insurance companies.
IV. Doe Defendants
42. Except as described herein, Plaintiff lacks sufficient knowledge of the true names of
Defendants sued as Does 1 through 30, inclusive, and, therefore, Plaintiff sues these Defendants by
such fictitious names. Following further investigation and discovery, Plaintiff will seek leave of
this Court to amend this Complaint to allege their true names and capacities when ascertained.
These fictitiously named Defendants are Apples officers, other members of management,
employees and/or consultants or third parties who were involved in the wrongdoing detailed herein.
These Defendants aided and abetted, and participated with and/or conspired with the named
Defendants in the wrongful acts and course of conduct or otherwise caused the damages and
injuries claimed herein and are responsible in some manner for the acts, occurrences and events
alleged in this Complaint.
V. Unnamed Participants
43. Numerous individuals and entities participated actively during the course of and in
furtherance of the wrongdoing described herein. The individuals and entities acted in concert by
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joint ventures and by acting as agents for principals, to advance the objectives of the scheme and to
provide the scheme to benefit Defendants and themselves to the detriment of Apple.
VI. Aiding and Abetting
44. At all relevant times, Defendants were agents of the remaining Defendants, and in
doing the acts alleged herein, were acting within the course of scope of such agency. Defendants
ratified and/or authorized the wrongful acts of each of the other Defendants. Defendants, and each
of them, are individually sued as participants and as aiders and abettors in the improper acts, plans,
schemes, and transactions that are the subject of this Complaint.
45. At all relevant times, Defendants pursued a conspiracy, common enterprise, and
common course of conduct to accomplish the wrongs complained of herein. The purpose and effect
of the conspiracy, common enterprise, and common course of conduct complained of was, inter
alia, to benefit the defendants personally to the detriment of Apple, by engaging in illegal,
fraudulent, and wrongful activities. Each Defendant was a direct, necessary and substantial
participant in the conspiracy, common enterprise, and common course of conduct complained of
therein, and was aware of his/her overall contribution to, and furtherance of, the conspiracy,
common enterprise and common course of conduct. Defendants acts of conspiracy include, inter
alia, all of the acts that Defendants are alleged to have committed in furtherance of the wrongful
conduct complained of herein.
STATEMENT OF FACTS
I. The Individual Defendants Conduct Stifled the Market for Labor in Silicon Valley,
thus Impairing Innovation
46. In the high technology sector, there is a strong demand for employees with advanced
or specialized skills. One of the principal means by which high tech companies like Apple recruit
these types of employees is to solicit them directly from other companies in a process referred to as,
cold calling. This form of competition, when unrestrained, results in better career opportunities.
47. During the relevant time period, Apple engaged in a practice of agreeing not to cold
call any employee at the other companies. The agreements were formed and actively managed by
senior executives of Apple and the other companies.
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48. Apple and the other companies actions reduced their ability to compete for high
tech workers and interfered with the proper functioning of the price-setting mechanism that
otherwise would have prevailed in competition for employees. None of the agreements was
limited by geography, job function, product group or time period. Thus, they were broader than
reasonably necessary for any collaboration between the companies, the department said.
II. In Order to Benefit Themselves, the Individual Defendants Agreed with Their
Counterparts from Competing Companies to Refrain from Recruiting from Each
Other
49. Jobs did not like the active movement of employees because he did not want to lose
good employees and have to pay new employees more money. As a result, some of the biggest
names in Silicon Valley, including Defendants sued herein, entered into agreements where they
agreed not to compete in the market for highly skilled employees by halting the practice of
recruiting each others employees. These agreements were per se illegal under the antitrust laws.
Jobs directly called the top executives at other companies if he had evidence or suspicions that their
companies were poaching employees from Apple. Jobs controlled, or had an Apple Director sit on,
the board of each company that was actively involved or participated in the conspiracy.
50. By at least early 2004 until at least 2010, Apple, through its highest ranking
executives, entered into agreements with its competitors not to directly solicit each others
employees. These agreements were concealed from the public, including the companies
shareholders, and the public pronouncements from Defendants were that they aggressively pursued
talent. The agreements not to recruit from other firms were enforced by the highest level employees
and Board members at Apple.
51. Apples illegal non-solicitation agreements with other companies were not limited
by geography, job function, product group, or time period. For example, an e-mail from one Apple
personnel to another suggests that illegal non-solicitation agreements covered all positions,
including Sous Chef, which is not considered a high-skilled job traditionally. The e-mail states
Apple personnel discussed the sensitivity of this issue and decided, We are not recruiting these
folks, they are actively seeking us out. Additionally, the e-mail confirms the existence of an illegal
non-solicitation agreement between Google and Apple by revealing, I have heard some rumblings
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in the last couple of months that Google may not necessarily be honoring their part of the hands-off
policy . . . (Figure 5).
Figure 5


A. The Conspiracy Began with Express Illegal Agreements Between Pixar and
Lucasfilm
52. The illegal non-solicitation agreements did not begin with Apple. In fact, they began
with an agreement between senior executives of Pixar and Lucasfilm. Apples co-founder and
former CEO Jobs, however, has a long history with Pixar. Jobs purchased Lucasfilms computer
graphics division, established it as an independent company, and called it Pixar in 1986. Jobs was
also Pixars CEO until 2006.
53. Beginning no later than January 2005, while Jobs was Pixars CEO, senior
executives at Pixar and Lucasfilm entered into various illegal non-compete agreements. For
example, they agreed not to cold call each others employees; notify each other when making an
offer to an employee of the other company, if that employee applied on his or her own; and if either
a company made an offer to such an employee of the other company, neither company would
counteroffer above the initial offer. The latter agreement had the intent and effect of eliminating
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bidding wars, in which an employee could use multiple rounds of bidding between Pixar and
Lucasfilm to increase his or her total compensation.
54. In July 2005, Sharon CokerLucasfilms Director of Human Servicese-mailed
Lori McAdamsPixars then-Vice President of Human Resources and Administration, asking for
confirmation that Pixar made an offer to one of Lucasfilms systems engineers. Coker also sought
confirmation of McAdams understanding that Pixar could not make a counteroffer once it made an
offer (Figure 6).
Figure 6

55. An e-mail from one Lucasfilm personnel to another a several years later in April
2007 confirms that the agreement between Pixar and Lucasfilm was in effect for years: We have a
standing agreement with Pixar, which I believe to be an informal gentlemans agreement
forged a few years ago . . . to call each other, HR to HR, whenever we extend an offer to someone
who works for the other company . . . We have agreed that we want to avoid bidding wars. Pixar
will give our employee their final best offer before calling us (emphasis added) (Figure 7).



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Figure 7

56. Later that year, in December 2007, McAdams e-mailed Jan van der Voort of
Lucasfilm clarifying the illegal non-solicitation agreement between Pixar and Lucasfilm: its ok
for us to interview and make offers to each others employees, we just dont ever directly solicit
talent . . . we just have a courtesy call when the offer is made, and then we dont counter each
other (Figure 8). McAdams also attached Pixars hiring policy with respect to Lucasfilm
candidates, which refers to the two companies gentlemans agreement (Figure 9).
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Figure 8


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Figure 9

57. Pixar and Lucasfilm entered into illegal non-solicitation agreements through direct
and explicit communications among senior executives. Pixar even drafted the written terms of the
agreements and sent those terms to Lucasfilm. Pixar and Lucasfilm provided these written terms to
management and certain senior employees with the relevant hiring or recruiting responsibilities.
58. After entering into the agreements, senior executives of both Pixar and Lucasfilm
monitored compliance and policed violations. For example, in 2007, Pixar twice contacted
Lucasfilm regarding suspected violations of their agreement. Lucasfilm responded by changing its
conduct to confirm to its illegal non-solicitation agreements with Pixar. During the conspiracy,
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Jobss position as both Apples CEO and Pixars CEO paved the road for the conspiracy between
Pixar and Lucasfilm to spread to Apple and approximately other companies.
B. Apple Enters Into an Express Illegal Agreement with Pixar
59. Steve Jobs was a major player in entering into and monitoring the illegal agreement.
Jobs had a long history with Pixar. Jobs had purchased PixarLucasfilms computer graphics
divisionand established it as an independent company called Pixar in 1986. He became and
remained Pixars CEO until 2006. While Jobs was Pixars CEO, he and other senior executives at
Pixar entered into at least three non-solicitation agreements with Lucasfilms senior executives.
Beginning no later than February 2004, Apple entered into an illegal non-recruit agreement with
Pixar. Senior executives of both companies agreed not to cold call each others companies. Jobs
continued to exert substantial control over Pixar when it entered into the agreement with Apple.
When Jobs died, John Lasseter and Ed Catmull of Pixar issued a joint statement, saying, Jobs was
an extraordinary visionary, our very dear friend and the guiding light of the Pixar family . . . He will
forever be part of the Pixars DNA.
60. An e-mail from Rob CookPixars then-Vice President of Software Engineering
to Jobs in February 2004 first sheds documentary evidence on their agreement not to recruit each
others employees. Cooks e-mail informed Jobs that [a]n Apple employee has applied for the job
of project coordinator . . . Since shes a support person instead of an engineer, Im hoping this
wont be a problem. Would it be OK for us to make her an offer? Jobs consented. (Figure 10).
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Figure 10

61. Rob expressed excitement over Jobss authorization and hinted that Pixar was facing
difficulties with, and not looking forward to, the idea of recruiting another project manager in light
of the illegal non-solicitation agreement: Hooray! I know this doesnt sound like a big deal, but
sometimes it can be surprisingly hard to find great support people, and we werent cherishing the
thought of having to keep looking. A subsequent e-mail from EC in the same e-mail thread
between Jobsprobably from an Apple employeestressed, The key is to stay away from the
engineers (Figure 11).
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Figure 11

62. The following year, Howard LookPixars then-Vice-President of Software
e-mailed Apple personnel in November 2005, confirming that the illegal non-solicitation agreement
between Apple and Pixar was still in effect and suggesting that Pixar was facing continued
difficulties with recruiting due to the agreement. Look informed Apple that Pixar was having a
hard time finding world class s/w dev candidates with Objective-C/Cocoa experience, and we of
course cannot recruit out of Apple. Do you have any leads on candidates? (emphasis added)
(Figure 12).

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Figure 12

63. The illegal non-solicitation agreement between Apple and Pixar was still going
strong in April 2007. An e-mail between from Lori McAdamsPixars then-Vice President of
Human Resources and Administrationto others at Pixar with the subject Apple gentlemans
agreement stated, I just got off the phone with Danielle Lambert [Apples Vice President of
Human Resources], and we agreed that effective now, well follow the a gentlemans agreement
with Apple that is similar to our Lucasfilm agreement . . . Danielle will ask her Recruiting team
to follow the same procedure. This e-mail confirms the mutuality of the Apple-Pixar express
illegal agreement and the existence of Pixar-Lucasfilm express illegal agreement. The e-mail also
explains the agreement between Apple and Pixar in detail, as shown by the substance of the emails
(Figure 13).

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Figure 13

64. In July 2009, Pixar appeared on Apples Hands Off (Do Not Call List), attached to
an e-mail between Apple personnel, which demonstrates that the illegal non-solicitation agreement
between Apple and Pixar had been going on for at least five years (Figure 14). The competition for
talent in Silicon Valley between Apple and Pixar was effectively squelched for at least half a
decade.

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Figure 14


C. Apple Enters Into an Express Illegal Agreement with Google
65. Google and Apple agreed in early 2005 not to recruit each others employees. At the
time, Defendant Campbell was a member of Apples Board of Directors and Googles Senior
Advisor (not to mention Chairman of Intuits Board of Directors).
66. The earliest public documentation of the illegal non-solicitation agreement between
Apple and Google are e-mails from Sergey BrinGoogles co-founderto Googles Executive
Management Group and Joan BraddiGoogles VP of Search Servicesdescribing threats that
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Jobs had made against Google upon suspicion that Google was recruiting Apple employees
working on the Safari browser.
67. In Brins February 13, 2005 e-mail with the subject irate call from steve jobs to
the Executive Management Group and Braddi, Brin reported that he got a call from steve jobs
today who was very agitated . . . it was about us recruiting from the safari team. he was sure we
were building a browser and were trying to get the safari team (emphasis added). Brin revealed
that Jobs made various veiled threats, and Brin soothed him by telling him we were not
building a browser and that to my knowledge we were not systematically going after the safari team
in particular (emphasis added). Brins e-mail served to confirm what we want to do about
partners/friendly companies and recruiting . . . [Jobs] told me he was cool with us hiring anyone
who came to us but was angry about systematic solicitation. i dont know if there is some
systematic safari recruiting effort htat [sic] we have (Figure 15). Brins e-mail suggests that Jobs
initiated Apples illegal non-solicitation agreement with Google in early 2005. (Figure 16).
Figure 15


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68. Later that month, on February 13, 2005, Jobs again called Brin with a threat, as a
result, Brin agreed to stop recruiting from Apple. In another e-mail from Brin to the Executive
Management Group and Braddi, Brin memorializes that he got another irate call from jobs today,
threatening if you hire a single one of these [Apple] people that means war (emphasis added).
Additionally, Brin asked Jobs if he expected [Google] to withdraw offers and he said yes. Brins
e-mail reveals that he told Jobs that he will discuss it with the executive team again. Brin
instructed the Executive Management Group and Braddi not to make any new offers or contact
new people at Apple until we had a chance to discuss.
Figure 16

69. To ensure compliance with the agreement, Google placed Apple on its internal Do
Not Call list, which instructed Google employees not to cold call Apple employees. Apple also
informed its relevant personnel about its agreement with Google and instructed them not to cold
call Google employees. Senior executives of Google and Apple monitored compliance with the
agreement and policed violations.
70. On February 18, 2005, Defendant Campbell (member of Apples Board of Directors,
Googles Senior Advisor and mentor to its then-CEO, Eric Schmidt, and Chairman of Intuits Board
of Directors) e-mailed Jobs from his Intuit e-mail account to provide an update on Apples illegal
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hiring agreement with Google. Defendant Campbells e-mail stated that Schmidt told
[Campbell] that he got directly involved and firmly stopped all efforts [at Google] to recruit
anyone from Apple (Figure 17).
Figure 17

71. The next day, Danielle LambertApples Vice President of Human Resources
circulated an internal memorandum to all of Apples recruiters in the U.S., reflecting that Apple and
Google agreed not to recruit each others employees. Lambert instructed, Please add Google to
your hands-off list, and requested recruiters to apprise her of any violations by Google (Figure
18).
Figure 18

72. By at least early March 2005, Googles illegal non-solicitation agreement with
Apple became effective. A Google internal memorandum lists Apple as a company having a
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special agreement with Google and is part of the Do Not Call list, effective March 6, 2005;
Googles protocol was [n]ot to directly cold call into companies on this list (Figure 8). Googles
first illegal non-solicitation agreements came on the heels of Jobss threat to Brin to stop all
recruiting at Apple (Figure 19).
Figure 19

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73. Jobs continued to monitor the agreements and contacted Googles CEO about
violations. The following year, in a February 13, 2006 e-mail from Jobs to SchmidtGoogles
then-CEOJobs complained, I am told that Googles [sic] new cell phone software group is
relentlessly recruiting in our iPod group. If this is indeed true, can you put a stop to it? On the
same day, Schmidt replied, Im sorry to hear this; we have a policy of no recruiting of Apple
employees. I will investigate immediately! (emphasis added) (Figure 20). Later that year, on
August 28, 2006, Schmidt was elected to Apples Board of Directors, where he served until August
2009 when Schmidt resigned due to conflicts of interest amid the growing competition between
Apple and Google.
Figure 20


74. The next year, in a March 7, 2007 e-mail from Jobs to Schmidt, Jobs again protested
Googles suspected violations of its illegal non-solicitation agreement with Apple: Eric [Schmidt],
I would be very pleased if your recruiting department would stop doing this (Figure 21) in
reference to an e-mail from a recruiter for the Google.com Engineering team (Figure 22).
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Figure 21


Figure 22

75. In response, Schmidt e-mailed Annon GeshuriGoogles then-Chief Staffing
Architectthe next day to get this stopped and let me know why this is happening? I will need to
send a response back to Apple quickly so please let me know as soon as you can. Geshuri replied
to Schmidt, reporting,
On this specific case, the sourcer who contacted this Apple
employee should not have and will be terminated within the hour
. . . In general, we have a very clear do not call policy that is given
to every staffing professional and I reiterate this message in ongoing
communications and staff meetings . . . for this type of violation we
terminate [the employees] relationship with Google. Please extend
my apologies as appropriate to Steve Jobs. This was an isolated
incident and we will be very careful to make sure this does not
happen again (emphasis added) (Figure 23).
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76. Schmidts responded, Appropriate response. Please make a public example of this
termination with the group. Please also make it a very strong part of the new hire training for the
group. (Figure 23).
Figure 23

77. Three years later, in 2009, an Apple internal e-mail reveals that the illegal non-
solicitation agreements were mutual and ongoing. Google appeared on Apples Hands Off (Do
Not Call List) (Figure 24), which was attached to an e-mail from one Apple personnel to another
setting forth the official Apple policy. (Figure 25).

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Figure 24

Figure 25


D. Apple Enters Into An Express Illegal Agreement with Adobe
78. After the successful but illegal non-solicitation agreements between Pixar and
Lucasfilm, Jobs entered into similar agreements on behalf of Apple with other companies, including
Adobe. A May 23, 2005 solicitation e-mail from Jerry Sastri, Talent Selection Manager of
Adobes Executive Recruiting, to an Apple employee (Figure 26) was a catalyst for Jobs e-mail to
Bruce Chizen, Adobes then-CEO, a couple days later to enter into a gentlemens agreement not to
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recruit each others employees. Jobss e-mail is concise and powerful: I have a standing policy
with our recruiters that we dont recruit from Adobe. It seems you have a different policy.
One of us must change our policy. Please let me know who (emphasis added). The post-script
in Jobs e-mail hints that before the agreement, Adobe had an active policy of promoting the
competition for talent by recruiting Apple employees, referring to many pings weve gotten from
Adobe (Figure 27).
Figure 26


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Figure 27


79. Chizens reply to Jobss e-mail infers that the gentlemens agreement between them
was in effect well before May 2005: I thought we had agreed not to recruit any senior level
employees . . . I am pretty sure your recruiters have approached more junior ones. I would propose
we keep it this way. Open to discuss. It would be good to agree (Figure 28).
Figure 28


80. Subsequent e-mails between Jobs and Chizen in May 2005 expanded the illegal non-
solicitation agreement between Apple and Adobe. Jobs responded to Chizens e-mail, threatening
to aggressively recruit Adobes employees absent such an agreement: Ok, Ill tell our recruiters
that they are free to approach any Adobe employee who is not a Sr. Director or VP. Am I
understanding your position correctly? Chizen then replied with his understanding: Id rather
agree NOT to actively solicit any employee from either company (Figure 29).

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Figure 29

81. That same day, on May 27, 2005, Theresa TownsleySenior Vice President of
Adobes Human Resourcese-mailed Adobe personnel, informing, Bruce [Chizen] and Steve
Jobs have an agreement that we are not to solicit ANY Apple employees, and vice versa . . . if it
looks like we have an Apple employee as a candidate for as a senior role at Adobe (Director and
VP), we need to let Bruce know so he can talk to Steve. The Apple-Adobe agreement had no
geographical limitation as Townsley stated, Please ensure all your worldwide recruiters know
that we are not to solicit any Apple employee. I know Jerry is soliciting one now, so hell need to
back off (emphasis added) (Figure 30). Chizen then forwarded Townsleys e-mail to Jobs with
fyi (a common abbreviation of For Your Information) to inform Jobs that Adobe was taking
actions internally to ensure compliance with agreement.

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Figure 30

82. Per Townsleys order, Shantanu NarayenAdobes then-President and Chief
Operating Officere-mailed Adobes eteam of worldwide recruiters. [Chizen, Townsley, and I]
dont want the gloves off-it doesnt do either company any good and we dont want Steve
personally recruiting our key talent. Weve agreed that we will not solicit employees (Figure 31).
Figure 31

Townsleys order, based on a conversation and express agreement between Jobs and Chizen,
initiated an overhaul of Adobes worldwide recruiting policies, as shown by Figure 32.

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Figure 32

83. The following year, one Adobe employee e-mail asked another person about
possibly targeting Apple for recruiting (Figure 33). The reply confirms the gentlemans agreement
not to poach each others talent between Jobs and Chizen. Further, it reveals that the men agreed
to not do audits of each other either. The reply copies Conroy ShumAdobes then-Director of
Worldwide License Compliancein case that agreement has changed (Figure 34).
Figure 33



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Figure 34

84. A June 17, 2008 e-mail from Natalie KesslerProgram Manager of Adobes WW
Talent Operationsto Adobe recruiters entitled Off-Limit List attaches a revised list of off-limit
companies from which Adobe can recruit (Figure 35). Apple tops Adobes Talent Acquisition:
Companies that are off limits list (Figure 36). The list states, Do not pro-actively solicit
candidates from Apple.
Figure 35



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Figure 36

85. A July 9, 2009 e-mail between Apple personnel attaching Apples Hands Off (Do
Not Call List) depicts the multi-year nature of Apples illegal non-solicitation agreements. Adobe
still appears on this list (Figure 37) four years after the e-mail exchanges between Jobs and Chizen
agreeing not to recruit each others employees without any job function or geographic limitation.
Figure 37

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E. Apple Enters Into An Express Illegal Agreement with Palm
86. In August 2007, Jobs contacted Ed Colligan, Palms then-President and CEO, in to
open discussions regarding a potential gentlemens agreement between Apple and Palm. Colligans
August 24, 2007 e-mail to Jobs indicates that he has thought long and hard about [their]
conversation. Colligan asserted, Your proposal that [they] agree that neither company will
hire the others employees, regardless of the individuals desires, is not only wrong, it is likely
illegal, which reflects that Jobs at least received peer-level communication that the agreements
were unlawful (emphasis added). Colligan also revealed, I even thought about coming back with a
proposal about limiting recruitment efforts, but frankly, I did not think it was something you would
agree to do (Figure 38).

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Figure 38



87. Colligans e-mail to Jobs continues for several pages, at one point capturing the heart
and soul of this shareholder derivative complaint: In our search for the best talent, one thing is
always certain experienced people come from somewhere else. Palm doesnt target other
companies we look for the best people we can find. Id hope the same could be said about
Apples practices (emphasis added) (Figure 39).
Figure 39

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88. Colligans e-mail also exposes Apples tactics included threatening litigation if an
agreement not to recruit employees could not be reached. this is a small space, and its inevitable
that we will bump into each other. Threatening Palm with a patent lawsuit in response to a
decision by one employee to leave Apple is just out of line. A lawsuit would not serve either of
our interests, and will not stop employees from migrating between our companies . . . I want to be
clear that we are not intimated by your threat (emphasis added). Apple was considering the
litigation route by directing a patent lawsuit at Palm unless Palm entered an illegal non-
solicitation agreement with Apple. Colligan explained, I dont think litigation is the answer. We
will just end up paying a lot of lawyers a lot of money (Figure 40).
Figure 40


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89. A few days later, Jobs replied to Colligan, stating, This is not a satisfactory to
Apple. Jobs attempted to justify a non-solicitation agreement, suggesting Palm was recruiting
Apple employees using knowledge supplied by Jon Rubenstein and Fred Anderson, with Jon
personally participating in the recruiting process. We must do whatever we can to stop this
(emphasis added) (Figure 41). Jobs responded that he was not satisfied with Palms response.
Rubenstein was Senior Vice President of Apples iPod division in April 2006 before he became
Executive Chairman of Palms Board of Directors. Anderson was a member of Apples Board of
Directors until September 2006 before becoming a member of Palms Board of Directors in
October 2007. Furthermore, in realizing Colligans position against a potential non-solicitation
agreement, Jobs threatened, Im sure you realize the asymmetry in the financial resources of our
respective companies when you say: We will both just end up paying a lot of lawyers a lot of
money. Jobs continued to pressure Colligan, warning of an impending patent lawsuit by Apple
against Palm: My advice is to look at our patent portfolio before you make a decision here.
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Figure 41

90. The fact that Apple lists Palm on its Hands Off (Do Not Call List) attached to an
e-mail between Apple personnel in July 2009two years after the e-mail exchange between Jobs
and Colliganand that no patent lawsuit was filed, leads to the conclusion that Jobs and Colligan
reached an agreement after Colligan folded on his position and succumbed to Jobss threats (Figure
42).
Figure 42

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F. Apple Had Approximately 25 Illegal Agreements With Other Companies
During the Conspiracy
91. Apple and approximately 25 other companies agreed not to recruit each others
employees during the conspiracy. A February 18, 2004 e-mail from EC to Jobs confirms that
Apple had illegal non-solicitation agreements with ILM and Dreamworks which has worked
quite well and contemplates an agreement with Sony after it approached all of our producers
trying to hire them (emphasis added). EC indicated that he/she probably should go down and
meet [redacted] and Sony to reach some agreement. Our people are become [sic] really desirable
and we need to nip this in the bud (emphasis added) (Figure 43).

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Figure 43

92. An attachment to an e-mail between Apple personnel reveals the illegal non-
solicitation agreements with other companies during the conspiracy. Apple was not allowed to
recruit from any of the companies on its Hands Off (Do Not Call List) from July 2009 (Figure
44). Apple therefore intentionally limited its own ability to have the best employees that were in
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the labor market. By 2009, Apples Hands Off (Do Not Call List) no longer only included
technology competitors but other companies, such as J. Crew and Nike.
Figure 44


93. This collusive scheme was incredibly effective since Apple directors served on other
boards. The companies alleged to have participated in the no-recruiting conspiracy shared directors
and senior advisors. Apple and Google had two directors in common: Schmidt and Defendant
Levinson, then-Genentechs CEO. Brin and Page, Googles co-founders, viewed Jobs as a mentor,
regularly joining him on his meditative walks. As the e-mail above indicates, several companies on
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Apples Hands Off (Do Not Call List) share directors with Apple, including Google, Genetech,
Intuit, J. Crew, and Nike.
94. An April 2008 e-mail also reflects that Apple and Intel had an illegal, non-
solicitation agreement. An e-mail thread between Intel personnel with the subject Hiring from
Apple indicates Mark MitchellIntels Engineering Managerwas considering hiring someone
that happens to work at Apple currently. He inquired, Does Intel have any agreements that would
preclude me from hiring this person? Deborah ConradVice President and General Manager of
Intels Corporate Marketing Groupreplied, We have an agreement NOT to hire top talent (esp
technial) [sic] away from each other (Figure 45).
Figure 45

95. A few days later, Mike Wagner of Intel followed up with his colleagues Mitchell
Conrad, stating, I just recently found out that an Intel staffing person was recruiting some graphics
folks from Apple, and we got our hands slapped . . . it may not be wise to move forward with trying
to take one of their [Extensible Firmware Interface] guys . . . (emphasis added) (Figure 46).
Wagners e-mail shows that the Apple and Intel agreement was not only in effect but enforced at
Intel.


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Figure 46

G. The DOJ Investigates and Concludes that the Agreements Were Per Se
Unlawful
96. In 2009, the DOJ began investigating Silicon Valleys hiring practices. The DOJ
filed a complaint against Apple, Adobe, Google, Intel, Intuit, and Pixar on September 24, 2010,
alleging that these companies private agreements restrained trade, which was per se unlawful
under antitrust laws. The DOJ found the agreements facially anticompetitive because they
eliminated a significant form of competition to attract high tech employees, and, overall,
substantially diminished competition to the detriment of the affected employees who were likely
deprived of competitively important information and access to better job opportunities. The DOJ
stated that the agreements disrupted the normal price-setting mechanisms that apply in the labor
setting. The DOJ announced a settlement of the action on its own website on September 24, 2010,
though a final judgment in the action was not entered until March 17, 2011.
97. Despite the DOJs investigation, Apple did not disclose the details of the DOJs
investigation to shareholders. An investor reviewing the Companys proxy statements, quarterly
filings, and annual filings would not have seen any mention of the investigation, the settlement
reached in September of 2010, or the final judgment signed on March 17, 2011. The Companys
proxy statements filed on January 11, 2011, January 9, 2012, January 7, 2013, and January 10, 2014
make no mention whatsoever of the DOJ investigation, settlement, or final judgment. Similarly, the
Companys 8K, 10Q, and 10K filings from October 2010 to the present do not mention the DOJs
investigation, settlement, or final judgment.
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98. Furthermore, on May 4, 2011, a former Lucasfilm software engineer filed a class
action lawsuit charging Apple, Adobe, Google, Intel, Intuit, and Pixarcompanies subject to DOJ
investigationwith violations of antitrust laws by conspiring to fix and restrict the pay of their
employees and entering into non-solicitation agreements with each other. Similar complaints were
later filed by other employees, and the cases were consolidated under the caption In re High-Tech
Employee Antitrust Litigation, Case No. 11-CV-2509-LHK (N.D. Cal.). On April 24, 2014, the
parties to this action announced that they had reached a settlement, which was later reported to be
$324 million.
III. The Individual Defendants Caused Apple to Issue False and Misleading Proxy
Statements in 2012, 2013, and 2014
A. The 2012 Proxy
99. On January 9, 2012, Defendants Campbell, Cook, Drexler, Iger, Jung, and Levinson
caused Apple to issue a definitive proxy statement (the 2012 Proxy), soliciting Apple
shareholders to vote, among other things, in favor of re-electing these Defendants as Apples
directors.
100. The 2012 Proxy discussed in detail each of these Defendants experience and
qualifications. The 2012 Proxy concluded that the Board believe[d] the skills, qualities, attributes
and experience of its directors provide the Company with business acumen and a diverse range of
perspectives to engage each other and management to effectively address the evolving needs of the
Company and represent the best interests of the Companys shareholders. Specifically, the 2012
Proxy stated:
Many of the current directors have senior leadership experience
at major domestic and international companies. In these positions,
they have also gained significant and diverse management
experience, including strategic and financial planning, public
company financial reporting, compliance, risk management and
leadership development. Many of the directors also have experience
serving as executive officers, or on boards of directors and board
committees of other public companies, and have an understanding of
corporate governance practices and trends. Other directors have
experience as directors or trustees of significant academic, research,
nonprofit and philanthropic institutions, which bring unique
perspectives to the Board.
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101. These statements were false and misleading because, as discussed above, these
Defendants continuously caused Apple to violate antitrust laws by agreeing with competing
companies to engage in anti-poaching practices. The 2012 Proxy failed to disclose, among other
things, that the Individual Defendants caused Apple to engage in anti-poaching practices, that the
DOJ had been investigating Apples potential violations of antitrust laws, and that the Individual
Defendants conduct may lead to criminal charges and civil liability against and cause substantial
damages to Apple.
102. As a result of these false and misleading statements and the Boards
recommendation, these Defendants were re-elected to Apples Board.
103. The false and misleading statements contained in the 2012 Proxy were material due
to the substantial likelihood that a reasonable shareholder would consider the disclosed and omitted
information important in deciding how to vote.
B. The 2013 Proxy
104. On January 7, 2013, Defendants Campbell, Cook, Drexler, Iger, Jung, and Levinson
caused Apple to issue a definitive proxy statement (the 2013 Proxy), soliciting Apple
shareholders to vote, among other things, in favor of re-electing these Defendants as Apples
directors.
105. The 2013 Proxy discussed in detail each of these Defendants experience and
qualifications. The 2013 Proxy concluded that the Board believe[d] the skills, qualities, attributes
and experience of its directors provide the Company with business acumen and a diverse range of
perspectives to engage each other and management to effectively address the evolving needs of the
Company and represent the best interests of the Companys shareholders. Specifically, the 2013
Proxy stated:
Many of the current directors have senior leadership experience
at major domestic and international companies. In these positions,
they have also gained significant and diverse management
experience, including strategic and financial planning, public
company financial reporting, compliance, risk management and
leadership development. Many of the directors also have experience
serving as executive officers, or on boards of directors and board
committees of other public companies, and have an understanding of
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corporate governance practices and trends. Other directors have
experience as directors or trustees of significant academic, research,
nonprofit and philanthropic institutions, which bring unique
perspectives to the Board.
106. These statements were false and misleading because, as discussed above, these
Defendants continuously caused Apple to violate antitrust laws by agreeing with competing
companies to engage in anti-poaching practices. The 2013 Proxy failed to disclose, among other
things, that the Individual Defendants caused Apple to engage in anti-poaching practices, that the
DOJ had been investigating Apples potential violations of antitrust laws, and that the Individual
Defendants conduct may lead to criminal charges and civil liability against and cause substantial
damages to Apple.
107. As a result of these false and misleading statements and the Boards
recommendation, these Defendants were re-elected to Apples Board.
108. The false and misleading statements contained in the 2013 Proxy were material due
to the substantial likelihood that a reasonable shareholder would consider the disclosed and omitted
information important in deciding how to vote.
C. The 2014 Proxy
109. On January 10, 2014, Defendants Campbell, Cook, Drexler, Iger, Jung, and
Levinson caused Apple to issue a definitive proxy statement (the 2014 Proxy), soliciting Apple
shareholders to vote, among other things, in favor of re-electing these Defendants as Apples
directors.
110. The 2014 Proxy discussed in detail each of these Defendants experience and
qualifications. The 2014 Proxy concluded that the Board believe[d] the skills, qualities, attributes
and experience of its directors provide the Company with business acumen and a diverse range of
perspectives to engage each other and management to effectively address the evolving needs of the
Company and represent the best interests of the Companys shareholders. Specifically, the 2014
Proxy stated:
Many of the current directors have senior leadership experience
at major domestic and international companies. In these positions,
they have also gained significant and diverse management
experience, including strategic and financial planning, public
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company financial reporting, compliance, risk management and
leadership development. Many of the directors also have experience
serving as executive officers, or on boards of directors and board
committees of other public companies, and have an understanding of
corporate governance practices and trends. Other directors have
experience as directors or trustees of significant academic, research,
nonprofit and philanthropic institutions, which bring unique
perspectives to the Board.
111. These statements were false and misleading because, as discussed above, these
Defendants continuously caused Apple to violate antitrust laws by agreeing with competing
companies to engage in anti-poaching practices. The 2014 Proxy failed to disclose, among other
things, that the Individual Defendants caused Apple to engage in anti-poaching practices, that the
DOJ had been investigating Apples potential violations of antitrust laws, and that the Individual
Defendants conduct may lead to criminal charges and civil liability against and cause substantial
damages to Apple.
112. As a result of these false and misleading statements and the Boards
recommendation, these Defendants were re-elected to Apples Board.
113. The false and misleading statements contained in the 2014 Proxy were material due
to the substantial likelihood that a reasonable shareholder would consider the disclosed and omitted
information important in deciding how to vote.
DAMAGES TO APPLE
114. Apple has been harmed by these illegal agreements because it was forced to enter
into an agreement with the DOJ in September 2010, which caused it to expend substantial time and
money to defend itself.
115. In addition, Apple has been sued in a class action brought by its employees for
antitrust and other violations alleging that their wages have been suppressed. The action, which
was initially filed against six companies, seeks damages against Apple, Google, Intel, and Adobe.
A class has been certified and trial had been set for May of 2014. On April 24, 2014, the parties
announced resolution of the lawsuit for a reported settlement of $324 million. Apple has had to
expend substantial time and money to defend itself and to satisfy the settlement.
116. As a result of its illegal agreements, Apples reputation has been harmed.
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117. Further harm has come from the loss of innovation which occurred because of the
illegal agreements. Alan Hyde, a Professor and the Sidney Reitman Scholar at Rutgers University
School of Law and author of Working in Silicon Valley: Economic and Legal Analysis of a High-
Velocity Labor Market (New York: M.E. Sharpe, Inc., 2003), concluded that technological and
economic growth depends upon a companys ability to hire and fire employees quickly in his theory
of damages. Professor Hyde addresses the evolving labor market by utilizing the high-technology
employers in Silicon Valley as a case study. Professor Hyde declares that the rapid and frequent
turnover of employees is a key component resulting in short job tenures. He also identifies the
heavy use of temporary labor and a lack of loyalty to individual firms as contributing factors.
Professor Hyde labels these unique components of employment in the mobile market of Silicon
Valley as high-velocity. In an attempt to explain why high-velocity labor supports rapid
technological growth, Professor Hyde effectively identifies and explains two general concepts,
flexibility and information diffusion. Flexibility accounts for the fluid market of available
employees consisting of contractors and consultants who typically move from one company to the
next. Information diffusion accounts for the technical know-how and advancements that travel
between companies as those employees move from job to job.
9

118. Accordingly, Defendants impeded technological and economic growth at Apple by
entering into illegal non-solicitation agreements with the Companys competitors to artificially
decrease employee salaries at Apple and at other companies, which suppressed high-velocity labor
by squelching flexibility and information diffusion. The illegal agreements run contrary to what
has made Silicon Valley so successful: job-hopping. As Professor Hyde explains, There is a fair
amount of research that tech companies, particularly in California, have distinctive personnel
practices. He states, They hire for short tenures and keep ties with former employees so there can
be an exchange of information across company lines. The companies in [a class-action lawsuit that

9
Alan Hyde. Working in Silicon Valley: Economic and Legal Analysis of a High-Velocity
Labor Market. New York: M.E. Sharpe, Inc., 2003. Print.
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accuses industry executives of agreeing between 2005 and 2009 not to poach one anothers
employee] might have been killing the golden goose.
10

119. The chiefs of Silicon Valley normally boast of their dedication to merit and market
forces. The acts alleged herein, however, reveal another side. This is one of hundreds of examples
in which our economy has been corrupted by the intense concentration of wealth, stated Roger
McNamee, co-founder of Elevation Partners, a private equity firm specializing in technology and
media.
11

120. As a direct and proximate result of Defendants actions and omissions, Apple has
expended, and will continue to expend, significant sums of money. Such expenditures include but
are not limited to:
(a) costs incurred from years of lost opportunities to hire more qualified
employees that were employed at other companies;
(b) costs incurred from defending and paying a settlement in the class action
for violation of antitrust laws;
(c) costs incurred from defending and settling allegations by the Department of
Justice; and
(d) loss of reputation.
DERIVATIVE ALLEGATIONS
121. Plaintiff brings this action derivatively in the right, and for the benefit, of Apple to
redress injuries suffered and to be suffered by the Company as a result of the Defendants breach of
fiduciary duties, gross mismanagement, and waste of corporate assets.
122. Plaintiff is the owner of Apple common stock, was the owner of Apple common
stock at all times relevant hereto, and has standing to bring this derivative action.

10
David Streitfeld, Engineers Allege Hiring Collusion in Silicon Valley. New York Times,
28 Feb. 2014, http://www.nytimes.com/2014/03/01/technology/engineers-allege-hiring-collusion-
in-silicon-valley.html?_r=0.
11
Paul M. Barrett and Brad Stone. Apple, Google, and the Hubris of Silicon Valleys
Hiring Conspiracy. Bloomberg, 1 May 2014, http://www.businessweek.com/articles/2014-05-
01/tech-hubris-the-silicon-valley-antitrust-hiring-conspiracy.
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123. Plaintiff and his counsel will adequately and fairly represent the interests of Apple in
enforcing and prosecuting its rights.
124. At the time this derivative lawsuit was commenced, Apples Board of Directors
consisted of eight individuals: Arthur Levinson, Tim Cook, Millard (Mickey) Drexler, Robert
Iger, Albert Gore, Jr., Andrea Jung, Ronald Sugar, and Susan Wagner.
I. Responsibilities of Corporate Directors
125. Corporate officers and directors owe the highest fiduciary duties of care and loyalty
to the corporation they serve. This action involves a knowing and/or reckless breach of defendants
duties of good faith, loyalty, and care.
126. Apple frequently states that its Board is held to the highest level of ethics. As stated
above these members have formed incestuous relationships with other corporations and used these
relationships to suppress innovation and employee pay. By allowing this behavior to continue, the
Board not only violated California and federal law, they also violated their own companys ethical
standards and guidelines.
127. Apples Corporate Governance Guidelines lists the responsibility and duties of the
Board.
II. Principal Duties of the Board of Directors
128. The fundamental role of the directors is to exercise their business judgment, and to
act in what they reasonably believe to be the best interests of the Corporation and its shareholders.
In fulfilling that responsibility, directors reasonably may rely on the honesty and integrity of the
Corporations senior management and expert legal, accounting, financial and other advisors.
129. The Guidelines also clearly address the high standard that board members are
expected to live up to. The Board expects its members, as well as officers and employees, to act
ethically. Directors are expected to adhere to the Corporations Business Conduct Policy and the
Guidelines Regarding Director Conflicts of Interest.
130. The Board failed to live up to its duties when they knowingly allowed Apple to
conspire with competitors to restrict hiring. As demonstrated through e-mails, members of the
Board were fully aware of these gentlemen agreements, or knowingly or recklessly approved or
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acquiesced to the implementation of these illegal agreements. These directors failed to perform and
act ethically.
131. Additionally, the Guidelines goes further to discuss the Boards responsibility in
regard to conflicts of interest:
Pursuant to the Corporate Governance Guidelines of Apple Inc. (the
Corporation), the Board of Directors of the Corporation expects
each director to act ethically at all times and to adhere to the
Corporations Business Conduct Policy.
132. The Corporations Business Conduct Policy states:
Apples success is based on creating innovative, high-quality
products and services and on demonstrating integrity in every
business interaction. Apples principles of business conduct define
the way we do business worldwide. These principles are:
Honesty. Demonstrate honesty and high ethical standards in all
business dealings.
Respect. Treat customers, suppliers, employees, and others with
respect and courtesy.
Confidentiality. Protect the confidentiality of Apples information
and the information of our customers, suppliers, and employees.
Compliance. Ensure that business decisions comply with all
applicable laws and regulations.
133. The Board is responsible for ensuring that business decisions comply with all
applicable law and regulations. It is clear from contemporaneous e-mails that the Board ratified
Apples involvement in this illegal activity and condoned the illegal agreements. It follows that the
Board either knew of these illegal activities and failed to stop them or acted in bad faith. Either
way, the Board is so heavily entrenched in these illegal transactions that any attempt to make a
demand would be futile.
134. The Apple Corporate Guidelines also addresses competing with other companies and
competition laws.
Laws regulating competition and trade practices vary around the
world, but certain activities, such as price fixing and agreeing with a
competitor to allocate customers, are almost always illegal and are
absolutely prohibited under Apple policy. You should not:
Agree with competitors or exchange information with competitors
on prices, policies, contract terms, costs, inventories, marketing
plans, or capacity plans.
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Agree with a competitor that the competitor will sell goods and
services to Customer A (and you will not), and that you will sell
goods and services to Customer B (and your competitor will not).
Agree with resellers on the resale pricing of Apple products
without legal department approval.
Require vendors to purchase Apple products in order to sell
products or services to Apple.
Describe the products or services of competitors inaccurately to
promote Apple products or services.
Engage in any pricing or other practices that could defraud a
supplier or others.
Violate fair bidding practices, including bidding quiet periods, or
provide information to benefit one vendor over other vendors.
135. The Board is tasked with following the Corporate Guidelines. The Guidelines state
that restricting competition is absolutely prohibited under Apple policy. Not only did Apple agree
with competitors not to recruit employees but the CEO of Apple even threated a lawsuit if Palm did
not agree. This clearly violates the Corporate Guidelines. Entering into illegal non-solicitation
agreements with competitors is contrary to this Code. The Board of Directors violated Apples own
Corporate Guidelines. Each member violated these standards, either by active participation or
failing to stop the illegal activity through sustained and/or systematic gross failure of oversight.
These illegal agreements continued for at least five (5) years and involved the highest level
executives of Apple, who also sit on the Board of Directors. For these reasons, demand on the
Board would be futile.
136. Additionally, each member of the Board has additional ethical and responsibilities
because of their respective Committees on the Board. Apple has three board committees: Audit,
Compensation, and Nominating.
137. The Audit and Finance Committee is responsible primarily for assisting the Board in
fulfilling its oversight responsibility of reviewing the financial information provided to shareholders
and others, appointing the independent registered public accounting firm, reviewing the services
performed by the Companys independent registered public accounting firm and internal audit
department, evaluating the Companys accounting policies and the system of internal controls
established by management and the Board, reviewing significant financial transactions, and
overseeing enterprise risk management. This Committee is comprised of Ronald Sugar, Defendant
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Campbell, Defendant Iger, and Defendant Levinson. These directors should be held to a higher
standard because of their position on this committee. They should have been aware by overseeing
the risk management and significant financial transactions that by performing illegal activities they
were opening Apple up for liability.
138. The Compensation Committee is responsible for primarily reviewing the
compensation arrangements for the Companys executive officers, including the CEO,
administering the Companys equity compensation plans, and reviewing the Boards compensation.
This Committee is comprised of Defendants Jung and Drexler, as well as non-defendant Albert
Gore. These directors control other directors income. These directors, in particular, control Tim
Cooks compensation. Tim Cook was part of top management during the conspiracy and it is not
plausible that he was unaware of the agreements due to his position and his close relationship to
Jobs and others.
139. The Nominating Committee assists the Board in identifying qualified individuals to
become directors, makes recommendations to the Board concerning the size, structure and
composition of the Board and its committees, monitors the process to assess the Boards
effectiveness and is primarily responsible for oversight of corporate governance, including
implementing the Companys Corporate Governance Guidelines. The members of this Committee
are Defendants Campbell and Drexler, as well as non-defendant Albert Gore. These members are
charged with overseeing and making sure the Corporate Governance Guidelines are being followed.
The illegal restrictive hiring guidelines clearly violated their own competition guidelines. Campbell
knew or was recklessly ignorant that violations were occurring.
140. By virtue of their positions at Apple, each of the Defendants owed Apple and its
shareholders the duty to exercise a high degree of care, good faith, loyalty, and diligence to manage
and administer Apple in its best interests, to preserve its property and assets, to fairly and accurately
report on its operations to the public markets, and not to seek to personally profit at Apples
expense. The conduct of the Defendants, as complained above and herein, involves knowing,
intentional, and culpable violations of their fiduciary duties to Apple and federal and California
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anti-trust laws. Moreover, the misconduct by Defendants was conducted or allowed by Apples
Board, which has failed to take any legal action on behalf of Apple.
141. Despite these duties, the Defendants were grossly negligent, reckless, and/or they
intentionally caused or allowed, by their actions or inactions, Apple to participate in illegal
restrictive employment agreements. Moreover, the restrictive scheme was in breach of Defendants
fiduciary duties of good faith, honestly and loyalty to Apple.
142. By virtue of their positions at Apple, and the control and authority they had as
directors and/or officers of Apple, each of the Defendants was able to and did, directly and
indirectly, control the wrongful acts complained of herein. These acts include their participation in
and encouragement of the illegal restrictive employment agreements with competitors. Because of
their positions with Apple, each of the Defendants was aware of these wrongful acts, had access to
adverse non-public information, and was required to disclose these facts promptly and accurately to
Apple shareholders and the financial markets.
143. Instead, the Defendants continued over the course of many years to operate under
these illegal agreements. The Defendants not only actively participated in restricting employees
employment options but they also actively sought out competitors and bullied them into
participating in these illegal agreements as well.
144. Plaintiff seeks, on behalf of Apple, redress for all money lost because of the
wrongful acts and omissions.
III. A Litigation Demand Would Be Futile and Is Thus Excused
145. As a result of the facts set forth above and herein, Plaintiff has not made any demand
on the Apple Board to institute this action against the Defendants. Such demand is excused because
making a demand would be a futile and useless act because the board is incapable of making an
independent and disinterested decision to institute and vigorously prosecute this action, and because
the wrongful conduct alleged herein is not subject to protection under the business judgment rule.
146. Since Apple is a California corporation, any demand requirement is evaluated under
California law.
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147. At the time this action was commenced, the Apple Board was comprised of eight
directors: defendants Levinson, Cook, Drexler, Jung, Iger and non-defendant directors Albert Gore,
Jr, Ronald Sugar, and Susan Wagner. Where there is an even number of board members, a plaintiff
need only allege that demand would be futile as to half the board members. Thus, plaintiff here
need only allege demand futility as to 4 out of Apples 8 current directors.
148. A majority of the Apple Board members are incapable of independently and
disinterestedly considering a demand to commence and vigorously prosecute this action.
A. Demand Would Be Futile Against Arthur Levinson
149. Levinson is incapable of considering a demand. Levinson has been a member of the
board since 2000. Levinson maintains numerous professional and personal relationships with other
members of the Board that create a reasonable doubt as to Levinsons ability to independently and
disinterestedly consider a demand on the Board to pursue the relief sought herein. Levinson was
also on the board and CEO of Genetech since 1999. Further, he was a director at Google from
2004-2009. In 2007, Levinson and Eric Schmidt sat on Apple and Googles Board. By May 2009,
the FTC launched an inquiry into whether the presence of Schmidt and Levinson on the boards of
both Apple and Google violated antitrust laws. One of the reasons the investigation was launched
was because both Levinson and Schmidt served on the boards of Apple and Google at a time when
the companies were beginning to square off against each other in the mobile space. Facing a
federal probe, Schmidt resigned from Apples board in August 2009 and a few months later,
Levinson resigned from Googles board. Levinson is a founding investor and CEO of Calico, a
Google-backed company, which was formed in 2013. Lucy P. Marcus, CEO of Marcus Venture
Consulting and an expert on corporate governance and board ethics, said of Levinsons role, There
is something about this that feels uncomfortable.
150. Further still, internal documents show that Google and Genetech entered into similar
agreements with each other. Each of these companies were on Apples do not call list and
presumably subject to the same illegal restrictive hiring agreements. Given Levinsons roles at
these companies and their appearance on Apples do not call list, it is reasonable to infer that he
knew about these agreements. Further since he held leadership positions in each company, it is also
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reasonable to infer that he actively participated in these agreements. Levinson would be incapable
of considering a demand because of the substantial personal liability he would face.
B. Demand Would Be Futile Against Tim Cook
151. Defendant Cook is incapable of considering a demand. Cook has been Apples CEO
and board member since 2011. He held other executive roles at Apple since 1998, including Chief
Operating Officer. Additionally, Cook has been Chairman of the Nike board of directors since
2005. As shown above, Nike was on Apples do not call list. There is even a note next to Nike
stating that they have board members in common. Given Cooks dual positions, his relationship
with Jobs and others, and his responsibilities at Apple, it is reasonable to assume that he at least
knew of the restrictive hiring agreements. It is even more reasonable to assume, since he was in
positions of power at each company that he encourage and facilitated the creation of these illegal
agreements. This is especially true since Nike is a retail company and would not likely do a lot of
recruiting at Apple for technical positions. It would take someone on the board of each company to
make such an agreement. It is reasonable to assume that was Tim Cook. Therefore, Cook would be
incapable of considering a demand because of the substantial liability he would face.
C. Demand would be Futile Against Millard Drexler
152. Defendant Drexler is incapable of considering a demand. Drexler has been on the
board since 1999. Drexler maintains numerous professional and personal relationships with other
members of the Board that create a reasonable doubt as to Drexlers ability to independently and
disinterestedly consider a demand on the Board to pursue the relief sought herein. For example,
Drexler was appointed to Apples Board only four months after Jobs was also appointed to the Gap
board of directors. Both Drexler and Jobs sat on the Gap board of directors until early October
2002 when both Drexler and Jobs abruptly resigned within the span of eight days. It is worth
noting that on September 7, 2006, Gap announced that it had discovered unrecorded compensation
expenses associated with previous stock option grants.
153. Drexler has also been the CEO and Chairman of the Board of J.Crew since 2003. As
noted above, J.Crew was on Apples do not call list, even with a note next to his name stating that
they were common board members. Given Drexlers roles at both companies, and the agreements
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between the companies, it is reasonable to infer that he played a part in creating and/or ratifying the
illegal agreements. Drexler would be incapable of considering a demand because of the substantial
personal liability he would face.
D. Demand Would Be Futile Against Robert Iger
154. Defendant Iger is incapable of considering a demand. Iger is the CEO and board
member of The Walt Disney Company and has been since 2005. One of Disneys acquisitions was
Pixar in 2006. Not only was Steve Jobs also at Pixar but as shown above, Pixar and Apple entered
into an illegal restrictive hiring agreement. In fact, Pixars was the strictest of all the illegal
agreements. Additionally, Pixar entered into other illegal hiring agreements while Iger was on the
Disney Board. It is reasonable to infer that Iger was aware of these illegal agreements before even
joining the Apple Board. Additionally, it is reasonable to assume that as CEO he was aware of the
restrictive agreement with Pixar and Apple when Pixar was acquired. Cook allowed this agreement
to go on and facilitated and encouraged others as well. His close relationship with Jobs makes him
incapable of taking action against Jobs. Any suit by Apple to recover for the wrongdoings listed
above would expose Iger to personal liability for the illegal agreements he ratified while at Disney.
E. Demand Would Be Futile Against Andrea Jung
155. Defendant Jung has been a director at Apple since 2008. During Jungs tenure as a
director, Jung and other Individual Defendants caused Apple to engage in practices that violated
antitrust laws by agreeing to refrain from hiring employees of Apples competing companies. In
fact, the DOJ began investigating Apples hiring practices in 2009. Thus, Jung was aware of
Apples antitrust violations. Indeed, Jung was familiar with government investigations from
holding various senior positions at Avon Products, Inc., including serving as Avons chairman and
CEO between 1999 and 2012.
12
Jung left Avon in 2012, when Avon was subject to multiple
investigations by government agencies, including the SEC, stemming from allegations of Avons
violation of U.S. laws in China and Latin America. Upon information and belief, Avon paid
hundreds of millions of dollars in connection with these investigations.

12
Katie Marsal, Apple board member Andrea Jung facing scrutiny at Avon, APPLE INSIDER,
Oct. 28, 2011, available at http://appleinsider.com/articles/11/10/28/apple_board_member_
andrea_jung_facing_scrutiny_at_avon (last visited Aug. 7, 2014).
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F. Demand by Plaintiff Is Futile and Therefore Excused Because a Majority of the
Board Is Unable To Conduct an Independent and Objective Investigation of
Wrongful Conduct
156. Demanding that the Board investigate and act upon the wrongdoing alleged herein
would be futile since a majority of the Board engaged in the wrongdoing alleged herein and all have
interests adverse to performing a fair, unbiased investigation. These directors breached their
fiduciary duties during the relevant period. The principal wrongdoers and beneficiaries of the
wrongdoing, dominated and controlled Apples Board of Directors and, thus, the Board can neither
exercise independent, objective judgment in deciding whether to bring this action, nor could it be
expected to vigorously prosecute this action.
157. The Director Defendants, Campbell, Levinson, Cook and Iger, cannot be relied upon
to reach a truly independent decision of whether to commence the demanded action against
themselves and those responsible for the misconduct alleged in this Complaint because, among
other things, the Board is currently dominated by the Defendants on the Board, who were
personally and directly involved in the acts alleged herein and approved the actions complained of,
and to whose directives and views the Board has consistently acceded and will continue to accede.
Apple has made many of the director Defendants multi-millionaires. This domination of the
Boards ability to validly exercise its business judgment renders it incapable of reaching an
independent decision whether to accept any demand by Plaintiff to address the wrongs detailed
herein.
158. Furthermore, demand is excused because the misconduct complained of herein was
not, and could not have been, an exercise of good faith business judgment. Making a demand on
the Board of Directors is excused if there is reasonable doubt that the challenged transactions were
the product of a valid exercise of business judgment and, therefore, are entitled to the protection of
the business judgment rule. To benefit from the protection of the business judgment rule, a director
must be informed of all material information reasonably available and, being so informed, the
director must act with requisite care in discharging his or her duties. To meet the standard of care,
in light of the information which the directors knew, they were obligated to take actions in the best
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interests of the Company, to the exclusion of the directors personal pecuniary interests, and
conduct full and adequate investigation into decisions affecting the Company and its assets.
159. Thus, because the Director Defendants engaged in acts of misconduct and
wrongdoing, as described above, those acts were not the product of a valid exercise of business
judgment and not entitled to the protections of the business judgment rule. The directors failed to
act to protect the interests and business assets of Apple. Failure to take such protections could not
have been a valid exercise of business judgment. In addition, the practice of illegally restricting
hirings has subjected Apple to potentially massive liability. Further, the Defendants face a
substantial likelihood of liability for their individual conduct and, thus, are incapable of making a
disinterested decision about whether to pursue the claims asserted herein.
160. Accordingly, demanding that the directors take action before this lawsuit was filed
would have been futile and, therefore, the demand requirement is excused.
161. Demand is futile if at least a majority of Apples Board of Directors cannot fairly
and independently adjudicate potential claims against themselves. Of the current Board of
Directors, the majority of Directors participated in the illegal agreement subjecting Apple to
criminal charges and financial and reputational risk. A majority of the Board therefore engaged,
and continues to engage, in the wrongdoing and has interests that are adverse to performing a fair,
unbiased investigation.
ADVERSE DOMINATION
162. The statute of limitations does not bar Plaintiffs shareholder derivative action.
Plaintiff has brought this complaint within the applicable statute of limitations.
163. Alternatively, the statute of limitations was tolled during Jobss adverse domination
of Apple and the concealment by Defendants of their wrongful acts. Here, the Defendant Directors
and Apple were wholly under the adverse domination of Jobs, who controlled shareholder votes.
Consequently, the Director Defendants were deemed to be in the same position as an incompetent
person or a minor without legal capacity either to know or to act in relation to the wrongful
conduct. Beal v. Smith, 46 Cal. App. 271, 279 (1920). Moreover, Defendants concealed, and
continue to conceal, their wrongful acts and this is a continuing conspiracy. The statute of
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limitations has therefore been tolled since Jobs adversely dominated Apple. The statute of
limitations should not bar Plaintiff, an innocent stockholder, from bringing this shareholder
derivative suit.
CLAIMS FOR RELIEF
Count I
Violation of 14(a) of the Exchange Act
Against Defendants Campbell, Cook, Drexler, Iger, Jung, and Levinson
164. Plaintiff incorporates by reference the allegations set forth above as though fully
restated herein.
165. Defendants Campbell, Cook, Drexler, Iger, Jung, and Levinson issued, caused to be
issued, and participated in the issuance of materially false and misleading written statements and
material omissions to shareholders that were contained in Apples 2012, 2013, and 2014 Proxies.
These Defendants are sued herein for the false statements in Apples 2012, 2013, and 2014 Proxies
due to their review, approval, and participation in the issuance of such proxies.
166. The 2012, 2013, and 2014 Proxies were materially false and misleading because they
omitted information regarding these Defendants conduct in connection with Apples anti-poaching
practices. Specifically, the proxy statements failed to disclose, among other things, that these
Defendants caused Apple to engage in anti-poaching practices, that the DOJ had been investigating
Apples potential violations of antitrust laws, and that these Defendants conduct may lead to
criminal charges and civil liability against and cause substantial damages to Apple. Instead, the
proxy statements touted these Defendants significant and diverse management experience,
including strategic and financial planning, public company financial reporting, compliance, risk
management and leadership development. Based on the false and misleading information in the
proxy statements, Apple recommended that these Defendants be re-elected as Apple directors year
after year. As a result of their recommendations, these Defendants were re-elected to Apples
Board.
167. By reason of the conduct alleged herein, the Defendants, who caused the issuance of
the 2012, 2013, and 2014 Proxies, violated Section 14(a) of the Exchange Act. As a direct and
proximate result of these Defendants wrongful conduct, the Defendants named herein misled
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and/or deceived its shareholders. The false statements and material omissions were material due to
the substantial likelihood that a reasonable shareholder would consider the information important in
deciding how to vote with respect to the matters contained in the proxy, which were submitted for
shareholder approval at the annual meetings. Among other things, based on the false statements
and material omissions contained in the 2012, 2013, and 2014 Proxies, a majority of shareholders
supported the Boards recommendation and voted in favor of re-electing these Defendants to
Apples Board.
168. Plaintiff, on behalf of the Company, seeks injunctive, declaratory, and equitable
relief for these Defendants violations of 14(a) of the Exchange Act and their interference with the
voting rights of Plaintiff and other Apple shareholders.
169. This action was timely commenced within three years of the dissemination of the
false proxy statements and within one year of the time that Plaintiff discovered or reasonably could
have discovered the facts upon which this claim is based.
Count II
Breach of Fiduciary Duty and Aiding and Abetting Breach of Fiduciary Duty
Against All Individual Defendants
170. Plaintiff incorporates by reference the allegations set forth above as though fully
restated herein.
171. Defendants, as Apples Directors and/or Officers were and are required to use their
abilities to control and manage Apple in a fair, just, and equitable manner to ensure that Apple
complies with applicable laws and contractual obligations, to refrain from abusing their positions of
control, and not to favor their own interests at the expense of Apple.
172. By their actions alleged above, Defendants violated their fiduciary duties to Apple,
including, without limitation, their duties of good faith, loyalty, and due care.
173. The wrongful conduct particularized herein was not due to an honest error in
judgment but rather to Defendants wrongful acts as well as bad faith and/or reckless disregard of
Apples rights and interests and its employees, without reasonable and ordinary care which they
owed to Apple.
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174. Defendants have participated in harming Apple and have breached fiduciary duties
owed to the company. Defendants knowingly aided, encouraged, cooperated and/or participated in,
and substantially assisted other Defendants in the breach of their fiduciary duties.
175. As a result of Defendants breach of fiduciary duties, Apple has sustained and will
continue to sustain damages and injuries for which it has no adequate remedy at law.
176. The acts of Defendants named herein, and each of them, were done maliciously,
oppressively, and with intent to defraud, and Plaintiff on behalf of Apple is entitled to punitive and
exemplary damages in an amount to be shown according to proof at the time of trial.
Count III
Gross Mismanagement
Against All Individual Defendants
177. Plaintiff incorporates by reference the allegations set forth above as though fully
restated herein.
178. By their actions alleged above, Defendants abandoned and abdicated their
responsibilities and fiduciary duties with regard to prudently managing Apples assets and business
in a manner consistent with the operations of a publicly held corporation.
179. As a result of the gross mismanagement, Apple has sustained and will continue to
sustain damages and injuries for which it has no adequate remedy at law.
180. The acts of Defendants were done maliciously, oppressively, and with intent to
defraud, and Plaintiff on behalf of Apple is entitled to punitive and exemplary damages in an
amount to be shown according to proof at the time of trial.
Count IV
Waste of Corporate Assets
Against All Individual Defendants
181. Plaintiff incorporates by reference the allegations set forth above as though fully
restated herein.
182. By their actions alleged above, and by failing to properly consider the interests of
Apple and its public shareholders by failing to conduct proper supervision, Defendants have caused
the Company to waste valuable corporate assets by paying improper compensation and bonuses to
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certain Directors who breached their fiduciary duties and to incur millions of dollars of legal
liability or legal costs to defend Defendants unlawful actions.
183. As a result of the waste of corporate assets, Apple has sustained and will continue to
sustain damages and injuries for which it has no adequate remedy at law.
184. The acts of Defendants named herein, and each of them, were done maliciously,
oppressively, and with intent to defraud, and Plaintiff on behalf of Apple is entitled to punitive and
exemplary damages in an amount to be shown according to proof at the time of trial.
Count V
Breach of Duty of Honest Services
Against Defendants Estate of Steven P. Jobs, Cook, and Anderson
185. Plaintiff incorporates by reference and realleges each and every allegation contained
above, as though fully set forth herein.
186. This claim is brought derivatively on behalf of the Company against Defendants
Estate of Steven P. Jobs, Cook, and Anderson for breach of their undivided duty of loyalty to their
employer, Apple.
187. Jobs, Cook, and Anderson were employees of Apple during the relevant time
period.
188. As alleged above, Jobs, Cook, and Anderson breached their duty of loyalty to Apple
by not acting solely in Apples interests in performing their employment duties.
189. Those breaches of duty consisted of the conduct alleged throughout this complaint
including, without limitation, Defendants causing the Company to enter into unlawful and
anticompetitive employee anti-poaching agreements, pursuant to which Apple agreed with its
competitors not to solicit each others employees for employment. Jobs, Cook, and Anderson
benefitted from their wrongdoing because they received compensation that was directly tied to the
companys financial performance, which was higher than it would have been but for the
wrongdoing since the wrongdoing help reduce Apples compensation expenses.
190. Apple was harmed by these Defendants breaches of their undivided duty of loyalty.
191. By reason of the foregoing, Apple was harmed and will continue to suffer harm as
described in greater detail above.
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PRAYER FOR RELIEF
Plaintiff on behalf of Apple requests judgment and relief as follows:
A. Declaring that Plaintiff may maintain this action on behalf of Apple and that Plaintiff
is an adequate representative of Apple;
B. Declaring that the Individual Defendants have breached and/or aided and abetted the
breach of their fiduciary duties to Apple;
C. Determining and awarding to Apple the damages sustained by it as a result of the
violations set forth above from each of the Individual Defendants, jointly and severally, together
with interest thereon;
D. Directing Apple and the Individual Defendants to take all necessary actions to
reform and improve its corporate governance and internal procedures to comply with applicable
laws and to protect Apple and its shareholders from a repeat of the damaging events described
herein, including, but not limited to, putting forward for shareholder vote resolutions for
amendments to Apples Bylaws or Articles of Incorporation;
E. Determining and awarding to Apple exemplary damages in an amount necessary to
punish Individual Defendants and to make an example of defendants to the community according to
proof at trial;
F. Awarding Apple restitution from the Individual Defendants, and each of them;
G. Awarding Plaintiff the costs and disbursements of this action, including reasonable
attorneys and experts fees, costs, and expenses; and
H. Granting such other and further equitable relief as this Court may deem just and
proper.
JURY TRIAL DEMAND
Plaintiff demands a trial by jury of all issues so triable.
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Dated: August 11, 2014 Respectfully submitted,
BOTTINI & BOTTINI, INC.
Francis A. Bottini, Jr.
Albert Y. Chang
Yury A. Kolesnikov
s/ Francis A. Bottini, Jr.
Francis A. Bottini, Jr.

7817 Ivanhoe Avenue, Suite 102
La Jolla, California 92037
Tel: (858) 914-2001
Fax: (858) 914-2002
fbottini@bottinilaw.com
achang@bottinilaw.com
ykolesnikov@bottinilaw.com
Attorneys for Plaintiff R. Andre Klein

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