The University of Southern California is an ambitious institution. So when it saw a chance to take a major research project on Alzheimer’s disease from the University of California at San Diego, it jumped. USC this summer hired away most of the 70-person operation from UC-San Diego, sparking angry recriminations and a lawsuit.
When Duke University and the University of North Carolina at Chapel Hill faced a somewhat similar situation a few years ago, however, they appear to have handled it in a much more neighborly fashion.
That’s the charge leveled in a lawsuit and supported by a former Duke spokesman: Rather than try to outbid each other for scientific talent, the two local research giants have quietly established a friendly détente, observing a general ban on hiring faculty members from the other institution.
But that, too, is a path to legal trouble, as it turns out. As USC and UC-San Diego have now learned, fighting over researchers may be bad for universities. But not fighting over researchers may be even worse, hurting both the workers and the institutions they serve, as well as violating federal and state laws.
Investing in faculty members only to see them reach stardom and leave for another university “can be frustrating,” said Michael W. Quick, the provost at USC. “But in the end, we’re sort of raising all boats by allowing faculty to make those choices.”
Neither Duke nor the University of North Carolina is commenting on the matter, citing the pending litigation. A longtime Duke spokesman, however, said that avoiding poaching just makes good sense.
“In my time in the administration, there was a general practice that we did not recruit aggressively at the other institution, and vice versa,” said John F. Burness, the senior vice president for public affairs and government relations at Duke from 1991 to 2008. “It was based on thinking both institutions were better if each institution was strong,” said Mr. Burness, now a visiting professor of the practice at Duke’s School of Public Policy.
Lateral Moves ‘Not Permitted’?
The strength of that logic is now among the questions facing a federal court in North Carolina. The case is being pursued by Danielle M. Seaman, an assistant professor of radiology at Duke, who describes getting close to winning a job at UNC in recent years only to have the process halted when her UNC contact was reminded of Duke and UNC’s mutual ban on cross-institution hiring.
“Unfortunately,” UNC’s chief of cardiothoracic imaging told Dr. Seaman by email in February, after three years of efforts to recruit her, “I just received confirmation today from the dean’s office that lateral moves of faculty between Duke and UNC are not permitted.” The email exchange, described by Dr. Seaman in her court complaint, does not identify the sender by name. UNC’s chief of cardiothoracic imaging, Paul L. Molina, did not respond to requests for comment.
The cardiothoracic-imaging chief, in a subsequent email in April, briefly explained the history of that practice to Dr. Seaman: “The ‘guideline’ was generated in response to an attempted recruitment by Duke a couple of years ago of the entire UNC bone-marrow-transplant team; UNC had to generate a large retention package to keep the team intact.”
Dr. Seaman’s lawsuit against Duke and UNC officials is being brought by a San Francisco law firm, Lieff Cabraser Heimann & Bernstein, which recently helped win a $415-million class-action settlement against Apple, Google, and other technology companies that had agreed not to poach one another’s engineers.
The tech case served as an early landmark for establishing the concept that antitrust laws on both the federal and state level — generally meant to protect consumers — could be applied to corporate actions that restrain worker mobility, said Daniel E. Eaton, a lecturer in employment law at San Diego State University. Dr. Seaman’s case represents an attempt to now apply that precedent to higher education, Mr. Eaton said.
“The law is really not as firmly developed in this area as it is in other areas of antitrust law,” said Mr. Eaton, a partner at Seltzer Caplan McMahon Vitek, who is not involved in either the technology-industry settlement or the Duke-UNC case.
Public statements by current and former Duke officials, including Mr. Burness, as well as the UNC emails produced by Dr. Seaman for her lawsuit, suggest strongly that the two universities were taking at least some kind of action to deter cross-institution hiring, Mr. Eaton said.
But such actions and statements might not be sufficient evidence of illegal restraint, at least as the law is currently understood, he said. The plaintiff, he said, would need to show that Duke and UNC had jointly devised a noncompete policy, as opposed to carrying out such a practice on their own.
While the full stories behind the UNC emails and the bone-marrow team’s recruitment aren’t yet known, Mr. Burness has made clear that he does view Duke’s reluctance to hire from UNC as a “practice” rather than a “policy,” and one that was never discussed or coordinated with UNC. Others in high positions at both universities have offered similar denials of any explicit or overt coordination.
“To my knowledge, it was never a policy — it was a practice,” Mr. Burness said. “I don’t know that it was ever a formal agreement — it was just an understanding.”
A former Duke president, Nannerl O. Keohane, offered a similar recollection to the university’s student newspaper, The Chronicle. “The question of whether Duke and UNC (or NC State) should attempt to recruit faculty from the other campus was always somewhat delicate,” Ms. Keohane, now a distinguished visiting professor of public affairs at Princeton University, told the newspaper. “At least while I was president we tried to avoid aggressive recruitment. Although if a faculty member personally reached out and took the initiative, that made it harder to say no.”
Legal Hurdles
Whether formal or informal, any effect appears to have been limited. According to data on LinkedIn, a database of 300 million people and their professional affiliations, more than 550 people currently either work at Duke and were formerly employed by UNC, or work at UNC and were formerly employed by Duke. Those numbers count all employees, not just faculty members, and accord with similar figures for other large research universities located near each other.
Officials at several of those university pairs denied they had any policies against hiring from nearby institutions. One expert on the topic, Orly Lobel, a professor of labor and employment law at the University of San Diego, said she could recall only one case alleging such a practice. That came decades ago, she said, when the New York University and Columbia University law schools appeared to avoid poaching from each other. If those schools had such a policy, it doesn’t exist any longer, and there’s now a lot of movement between them, Ms. Lobel said.
Dr. Seaman nevertheless faces some high hurdles in her case, which was filed as a class action on behalf of all other workers at Duke and UNC who may have had their salaries depressed by the two institutions’ apparent reluctance to hire from each other.
The universities, for instance, could cite other ways in which their actions allow or even stimulate economic competitiveness, Ms. Lobel and Mr. Eaton said in separate interviews. Both cited examples of companies’ being allowed to mutually ban employee recruitment while engaged in close partnerships that involve sharing employees.
The defendants also might be able to argue that a noncompete agreement between two universities would still leave workers plenty of other employment options nationwide, Mr. Eaton said. That argument might give universities legal protection even though they have many employees — such as married faculty members with children — for whom moving outside a particular geographic area might not be a realistic option, he said.
Location appeared to have been an important factor for Dr. Seaman, who wrote in frustration to UNC’s chief of cardiothoracic imaging: “There are only two academic centers in this area where I could work, and I am already at one of them.”
If victorious, Dr. Seaman and her legal team also would face the complicated question of calculating damages. The technology-company case shows that experienced economists can make strong estimates of wages lost in an anticompetitive environment, Ms. Lobel said. Still, that number-crunching adds more costs to the process, Mr. Eaton said. And he noted that in a key ruling last week in the technology case, a federal judge gave the plaintiffs only half of the $81 million they had sought in legal fees. That could be more discouragement for Dr. Seaman’s side, he said.
“When you start talking about significantly reducing fees,” Mr. Eaton said, “you talk about reducing the incentive to bring these kinds of lawsuits, that have a very uncertain outcome at the beginning.”
Paul Basken covers university research and its intersection with government policy. He can be found on Twitter @pbasken, or reached by email at paul.basken@chronicle.com.
