Smooth Transitions

Mike Leach Update

Rob Radcliff — Mon, 15 Mar 2010 04:10:52 -0600

After filing a lawsuit against Texas Tech and then being fired, Mike Leach relocated to Florida and continued with his breach of contract lawsuit. The amended petition (or complaint from those outside of Texas) sheds a little more light on the facts giving rise to his firing and claims.

Last week, the depositions of Leach, Craig James, and Adams James took place in Lubbock, Texas. Coincidentally or not coincidentally, depending on your perspective, video of Leach's expletive fueled ripping of his players was released before the deposition.

We'll keep you posted on developments in the case. Leach is looking for money and odds are, like with 95% of all cases, the matter will settle. No question that Leach is one of the more colorful coaches in football and no question that there are a few people at Tech that don't like him.

4 Social Media Commandments

Rob Radcliff — Wed, 10 Mar 2010 05:19:14 -0600

Different companies have different and evolving social media policies that hopefully are tailored to the companies' business but below are some social media commandments that most every employee should follow. Here is a start:

(1) Assume everything you post is being read by your boss, supervisor, and grandmother. The point is once content, updates, posts, pictures etc., are released into cyberspace, they cannot be retrieved.

(2) Don't badmouth your customers, company, coworkers or your boss. Seems like a common sense proposition but some think their on line content is somehow insulated from their work life, it is not.

(3) Think about who you friend or follow. You can tell a lot about people based on who they are friends with on Facebook or who they follow on twitter. That's not necessarily a good or bad thing but how much do you want to reveal about yourself? Do you really need to be friends with your boss or subordinates?

(4) Common Sense - use it. Most issues can be avoided by simply using a little common sense.

What would you include?

In Defense of Non-Competes - Make them Industry Specific

Rob Radcliff — Mon, 22 Feb 2010 04:11:14 -0600

Jay Shepherd's recent post on "Rethinking non-competes" in his Gruntled Employee Blog got me thinking. His take was this:

But if [the employee] decide[s] eventually that it's time to leave the nest, then they should be free to do so. Even if it means that they're going to compete.

With one exception. They can't take our stuff. And by stuff I mean two things: our secrets and our client relationships. If their old jobs required them to work with our secrets — our legitimate, protectable secrets, not stupid things like prospect lists — then they should not be allowed to take them to their new jobs. And if in their old jobs we paid them to develop and maintain customer relationships to the extent that they became the face of our company, then they should have to stay away from those relationships for a reasonable period of time. A year, say.

Seems like a pragmatic approach and employers get to protect their trade secrets and customer relationships. Courts don't like enforcing non-competes that are simply punitive in nature, there has to be something real to protect and the law in Texas has evolved that way.

The optimal solution however is not one size fits all. Instead, it should be industry specific. Non-compete agreements are not appropriate for every industry. The industry need to take the initiative to work out employee transition agreements. I know, wishful thinking. But it can be done. Broker Dealers have done so with The Protocol. The industry knows what their "special sauce" is and what truly needs protection. The Protocol allows employees to move within the industry and take their clients. This may not be appropriate in every industry. But the point is the industry and the market, not lawyers or legislators, are in a better position to make the determination.

Financial advisor update.

Rob Radcliff — Mon, 15 Feb 2010 04:26:40 -0600

Predictions about a slowdown in financial advisor recruiting appear to be premature. Last week, Wells Fargo, which purchased Wachovia, which purchased AG Edwards, announced it was looking to add 1400 financial advisors. It plans to recruit 400 new advisors and obtain the others from other firms. This comes on the heels of reports that BofA intends to add 2000 advisors.

Movement of established brokers often leads to litigation/arbitration when the parties involved are not members of The Broker Protocol. Obviously there is no concern when a broker/dealer is hiring a trainee but even when a broker/dealer is a member of the Protocol it may still file suit or compel an arbitration when a competing firm is raiding its employees.

Most recently, as covered by Mark Astarita of SEClaw.com, Raymond James was hit with a $12.1 million dollar arbitration award in a case involving 20 advisers in 4 branch offices. Wachovia alleged Raymond James raided its branch offices. A copy of the award is available at SECLaw.com. Allegedly, Wachovia lost $5.3 million dollars in production from the departure of the advisors.

We'll keep an eye on BofA and Wachovia's recruiting efforts.

Breaking Down Legal Jargon on Texas Non-Competes

Rob Radcliff — Mon, 08 Feb 2010 04:47:09 -0600

In Texas a non-compete has to be ancillary to an otherwise enforceable agreement. What does this mean? The consideration (or value) in the separate agreement must give rise to the employer's interest in keeping the employee from working and the non-compete must be designed to prevent the employee from breaching the promise she gave as consideration (value) in the other agreement. Examples are the best way to understand what this means.

Say I go to work as a programmer for a company that makes a state of the art mp3 player with a highly advanced new technology. In order to carry out my job I will be provided access to the source code for the technology and my job will include manipulating and altering the code. The company states in my employment agreement that it will provide me with the source code and that because I am being provided with the source code I cannot work in the mp3 player industry for 1 year after I quit or am fired from the company. (Yes there is a nondisclosure agreement and common law duty not to disclose an employer's trade secrets but ignore that.) So, there is an otherwise enforceable agreement (the agreement to provide me with the source code) and providing me with the code gives rise to the non-compete.

The alternative is an agreement that has nothing to do with a non-compete. Say a company agrees to pay me $100 in the event I quit or am fired. There is also a one year non-compete. Yes, there is an ancillary agreement - the promise to pay $100- but it has nothing to do with keeping me out of the industry for a year. This doesn't work.

The trick is to tie what the company is trying to protect to the non-compete. Court's are far more likely to enforce a non-compete when the employer has provided something of value that is worth protecting.

Facebook and FINRA: FINRA's Social Media Guidance

Rob Radcliff — Mon, 01 Feb 2010 08:12:51 -0600

FINRA recently provided social media guidance to broker/dealers. The Regulatory Notice guides firms on applying communication rules to social media sites which FINRA defines to include blogs and social networking sites like Facebook. It does not apply to sites used for purely personal reasons but the line between the two blurs as the growth of social media continues.

What are the highlights? Here are a few:

If a firm or its personnel are using social media to communicate about business it is required to keep records of all such communications.
Don't recommend a security on a social media site or it will trigger the requirements of NASD Rule 2310 regarding suitability.
If a firm is going to recommend a security such recommendation must be approved approved by a registered principal of the firm.
Webinars and other interactive electronic forums like a chat room are considered a public appearance under NASD Rule 2210.
Static information on social media, such as a profile, background, or wall information must be approved by a registered representative before it is posted.
FINRA considers a static blog an advertisement that requires approval of a principal but a blog that permits real-time interactive communications does not require prior principal approval.
Interactive communications on a social media site that are real time do not require a registered principal’s approval.
Even though a principal's prior approval may not be necessary, the firm must supervise these electronic communications in a manner reasonably designed to ensure they do not violate the content requirements of FINRA's communication rules.

The notice goes on to provide more detail on supervision of social media sites and third-party posts. Needless to say it's unlikely that a broker/dealer will recommend a security over Twitter or Facebook - that's just not smart at a number of levels. Any real time communications regarding securities will require supervision by the firm and archiving of those communications. I'm not sure the notice will "chill" social media use by broker/dealers but I'm also not sure it will drive them to use it as a business device other than general networking.

Are the broker recruiting wars over?

Rob Radcliff — Tue, 26 Jan 2010 07:02:58 -0600

From late 2008 through 2009 financial advisors were on the move. Thousands of brokers left their positions with firms like Merrill Lynch, Wells Fargo and UBS. Many transitioned to new brokerage houses enticed by lucrative signing bonuses and compensation packages. Others were simply unsure of ever changing policies and compensation systems that resulted from industry consolidation such as the Merrill/BofA merger.

There were non-compete/non-solicitation lawsuits many of which were discussed here. With the protocol in place, many FAs can transition to new jobs without the fear of a lawsuit. Nevertheless, moving your business to a new employer is work. Some clients are loyal to the institution, others simply don't want to move, and the former employer will put a full press on to keep the departing brokers' business once they announce their intentions to leave.

According to a recent Reuters' article , the recruiting seen over the last year will calm down in 2010:

Veteran recruiter Michael King, of Michael King Associates, said movement will slow because so many brokers are now tied to their firms, either with retention plans or because they accepted recruiting packages with long-term commitments.

"The big wave was last year, from the end of '08 through the first half '09. A lot of the people who wanted to move, moved," King said. "And many of the people who have not moved are already under contract."

Companies will still offer lucrative incentives to move, but the pool available to transfer appears to have dried up for now. Of course, the pool will repopulate after the deals inked in 2009 expire and some brokers look for the best new deal.

Lessons from Conan's Non-Compete Negotiations

Rob Radcliff — Wed, 20 Jan 2010 07:03:32 -0600

The Conan O'Brien/Jay Leno imbroglio of the last couple weeks appears to be winding to an end. According to reports from TMZ, Conan will receive a $32.5 million dollar payout but sit on the bench and not start a new show until September. The rumor is he will start a new show with Fox.

There has been speculation that Conan had a non-compete agreement with NBC. Jay Shepherd points out in his blog that it is unlikely the non-compete was governed by California law because it would be unenforceable:

And California, as many of you know, prohibits noncompetes. Section 16600 of the California Business and Professions Code makes employment-related noncompetes — like the one Conan reportedly has — void.

Unfortunately, his contract with NBC is not available on line, but let's assume Conan had an enforceable non-compete under Texas law. (There are a whole bunch of reasons why it's not, but give me some latitude.) What can Conan teach us? Bottom line, negotiations never end. Conan's failure at NBC actually created leverage for him in negotiations. NBC wants Leno back in hopes that he will drive up ratings but is tied to Conan who waited for years for Leno's departure. Conan isn't going to go back to the later time spot, who knows what his contract says about that. So NBC elects to pay him off. Much of the money is salary he would have earned in the interim anyway, and he agrees to stay on the sidelines for a few month. Win win, or so it seems.

The typical employee is not Conan and the typical employer is not NBC. But, when an employer is facing a departing employee with a non-compete that may be unenforceable it's time to think outside the box to see if some other type of resolution can be reached. Maybe an agreement to stay away from certain customers or stay out of the industry for a shorter time - be creative. The same goes for the employee. This won't always be appropriate but it beats significant legal fees, expedited discovery, and temporary injunction hearings.

Weight Loss Center Non-Compete

Rob Radcliff — Tue, 12 Jan 2010 07:57:58 -0600

Non-compete agreements cover a range of businesses/industries from financial services, to food and beverage, dance studios, and even pet care. It should come as no surprise that a lawsuit was filed by Surgical, Cosmetic, and Weight Loss Centers of America against a former employee that started work with the University of Texas Medical Branch - Center of Weight Loss Management. The lawsuit was filed in Jefferson County, Texas.

The Defendant signed a three year noncompete that restricted her from working for a competing business that was within a 25 mile radius of her former employer. Three years is a long time for a non-compete but Texas courts evaluate non-compete terms on a case by case basis - there is no bright line rule on the term of a non-compete. The employer alleges in the lawsuit:

Defendant, while working for plaintiff, was provided material, substantive benefits which made defendant as a medical professional more marketable in the field of her expertise. . .

As previously discussed, a Texas non-compete agreement must be ancillary to an otherwise enforceable agreement. Employers usually claim that some type of trade secret was provided to the employee. It will be interesting to see what benefits were provided to the Defendant in this case that give rise to the non-compete. Typically, employers fail in enforcing non-competes when they cannot establish that they provided the employer with the consideration promised, such as specialized training, access to trade secrets, etc. Assuming the scope and duration of the non-compete are acceptable, an attack on consideration is one of the last lines of attack in Texas after recent rulings from the Texas Supreme Court.

ArmChair Quarterbacking the Mike Leach Lawsuit

Rob Radcliff — Tue, 05 Jan 2010 07:30:53 -0600

Mike Leach's application for a temporary restraining order to permit him to coach Texas Tech in the Alamo Bowl on January 2 was mooted when Tech fired him on December 30. Allegedly, the timing of the firing was based on Leach's contract that entitled him to $800,000 on December 31. Tech went on to beat Michigan State 41-31. Tech now begins the search for a new coach and Leach's lawyer has promised a lawsuit.

Even without the firing, Leach faced an uphill battle. As discussed here previously, an applicant for a TRO must establish there is no adequate remedy at law and imminent harm, among other things. Leach sought to prevent Tech from suspending him from coaching the football team because he essentially was deprived of due process. The Petition provided:

8. Mike Leach seeks that this Court enter an order restraining Texas Tech University from suspending Mike Leach from coaching the football team.

9. It is probable Mike Leach will recover from Defendant after trial on the merits because Mike Leach has not committed any wrongdoing, he has not been informed of any rules or standards he violated, and his contract does not provide for suspension even if Defendant had shown a violation of a rule or standard, which it has not.

10. If Mike Leach's application is not granted, harm is imminent because Mike Leach will be unable to coach his football team in practice prior to the Alamo Bowl and during the Alamo Bowl.

The claimed basis for the firing of Leach stems from his treatment of sophomore Wide Receiver Adam James following a concussion. James' is the son of former SMU player and television analyst Craig James. Leach reportedly had James confined to a shed as described in the affidavit of a Tech football trainer:

I walked Adam to the room, which was at least as big as a two-car garage . . .Inside the room there is an electrical closet. I looked in the closet and stated that there was 'no way that Adam would be placed in there.' I shut the door to the electrical closet, and it was never opened again. At no time during this practice was Adam ever placed in the electrical closet.

Regardless of what actually occurred, it seems unlikely a Texas court would have ordered Tech to permit Leach to coach in the Alamo Bowl. Leach's claim that he would suffer imminent harm because he could not coach is unpersuasive. An employer generally has the right to restrict or modify the duties of an employee, as Tech did with Leach. In response to the TRO application, Tech took the decision away from the Court and fired Leach.

The Leach/Tech battle is a long way from over. With a significant amount of money at stake, Leach, a lawyer himself, will continue his legal fight. Stay tuned.

Keep your employment agreements handy.

Rob Radcliff — Tue, 29 Dec 2009 04:28:20 -0600

Whenever I talk with an employee or employer about a noncompete or nonsolicitation agreement the number 1 question is "Can you provide me with the agreement you (or the employee) signed?" Usually, the employer has a nice neat employment file that contains all agreements. Employees on the other hand are usually a different story.

In the last week I've talked to two highly paid employees who were contemplating making a move to a new company. One thought they had a noncompete, the other couldn't remember. Neither had the actual agreement but was going to request one from their employer.

An employee requesting their employment agreements at the end of the year sends out a red flag - "I am looking for a new job." There is a lot of employment transition at the end of the year as the employee has presumably received their bonus and there is less financial incentive to stay. Yes, your employer will provide you with your agreements, but if they're smart you will be under the microscope.

Point is, keep anything you sign with your employer. Ask for a copy at the time you execute any agreement, including any amendments or supplements you sign through the years. It just makes good sense for a variety of reasons. Remember, the agreement your coworker signed isn't necessarily the same agreement you signed.

(H/T Virgina Non-Compete Law Blog)

Greatest Hits from Depositions

Rob Radcliff — Tue, 22 Dec 2009 10:34:12 -0600

Happy Holidays to you and your family. Below are a few of my favorite deposition clips:

This back and forth is priceless:

The masked man deposition:

My all time favorite with Texas legend Joe Jamail:

Fantasy Football Firing

Rob Radcliff — Fri, 18 Dec 2009 04:30:50 -0600

It's that time of year - the NFL season is drawing to a close and fantasy football leagues are in the midst of the playoffs. Fantasy leagues are as popular as ever and cover all sports, not just football. Fantasy leagues based on the NFL are by far the most popular and in many instances are comprised of co-workers and in some cases the use of company resources like email.

Which leads us to the firing of four employees in Fidelity Investments' Westlake, Texas office for playing Fantasy football. Fidelity's take on the firing:

We have clear policies that relate to gambling. Participation in any form of gambling through the use of Fidelity time or equipment or any other company resource is prohibited. In addition to being illegal in a lot of places, it can also be disruptive. We want our employees to be focused on our customers and clients.

One of those fired, Cameron Pettigrew, knew that Fidelity did not permit playing fantasy on company time but claimed he never used company email for the league. Fidelity did find two instant messages that included fantasy content. Pettigrew explained:

One of my buddies sent me something about how bad Trent Edwards was playing or something like that, So they called me in and talked to me for about 90 minutes on everything I ever knew about fantasy football. They interrogated me as though I was some sort of international gambling kingpin. Then they released me for the day, and I was like, 'OK.’ I never thought they’d fire me for this, but, the next day, I get the call saying I had been terminated.

Tough time of year to be fired and Pettigrew knew he wasn't allowed to play at work, but was he really playing? The Ft. Worth Star Telegram asked its readers if Fidelity overreacted:

Did Fidelity overreact by firing fantasy football players?
(1) No. (19%, 60 votes)
(2)Yes. (57%, 185 votes)
(3)Depends. (There's no way outsiders can know the whole story.) (24%, 78 votes)

It seems unlikely that Pettigrew and his cohorts have any legal challenges to the firing as Texas is an at-will employment state. If a company has a policy against playing in a fantasy league during work time, don't play.

Tiger Texting

Rob Radcliff — Mon, 07 Dec 2009 16:34:50 -0600

Tiger Woods' use of text messaging underscores the repercussions such communications can have, especially when the messages are released from the recipient to a third party. Apparently, Tiger sent text messages to one of the women he is alleged to have had an affair with and she has offered the texts as proof. Tiger isn't the first to down by way of the text message, as former Detroit Mayor Kwame Brown can attest to, and odds are he won't be the last.

Text messaging may appear to be "safe" for communications of this sort but it is not. In addition to the Tiger example, texting can be front and center in lawsuits. Consider a scenario where two employees decide to leave their employer and take valuable customer information with them. They coordinate their departure through text messages because they believe this is safe communication as opposed to email. Is it? Can the employer obtain the texts through discovery?

There are three potential sources to obtain text messages: the phone, the phone company, or the recipient. Once texts are deleted from the phone, it "sticks around" as described in Slate:

until enough new information is added to fill that memory, your old text message will remain on your device. If you used a SIM card to store your text messages before you erased them, then there might be space for the remains of 30 or so deleted messages; if the messages are downloaded directly to your phone, several hundred deleted messages could stick around on your device. Eventually, of course, the deleted messages will disappear as memory is filled with new messages, photos, or videos.

Phone providers have different policies on how long they maintain text files: AT&T Wireless keeps messages for 48 hours while Sprint keeps them on its server for approximately two weeks. So it is unlikely that text messages can be obtained from the phone company unless you know about the messages near the time they were sent.

The third source, the recipient could keep the text forever. They could print out the text, save it, or send it to other people. The point is once you release the text message, just like an email, you have effectively published it to the world.

The party to a lawsuit may have a difficult time obtaining text messages through discovery but should include requests for these types of communications. Also, in appropriate instances, discovery should be directed to potential third-party recipients of such messages.

There's A Lawsuit for That

Rob Radcliff — Thu, 03 Dec 2009 06:39:41 -0600

Verizon and AT&T nonsuited lawsuits pending in New York and Atlanta today which largely stemmed over the companies' respective 3G phone service. Verizon filed a declaratory judgment lawsuit in July requesting a New York court to find Verizon's claim that its 3G network was the most reliable was accurate. AT&T filed a lawsuit in November claiming Verizon's "There's a A Map for That" ad campaign was misleading. It also attempted to obtain a temporary restraining order shutting down the ad campaign but the Court denied the request.

Verizon's campaign was a response to AT&T's iphone success and the "There's an app for that" campaign. It is unclear why the lawsuits were dismissed. The Judge's denial of AT&T's application for a temporary restraing order certainly did not bode well for future success in the Atlanta suit.

A dog eats dog world: Petsmart sues over noncompete.

Rob Radcliff — Tue, 24 Nov 2009 05:18:41 -0600

Petsmart recently sued a St. Louis petshop over a former employee's alleged violation of a noncompete. The agreement prevents Chris Lee, a co-owner of A Walk in the Park, from working at a petshop within a five-mile radius of any Petsmart location in St. Louis. There are 12 Petsmart locations in St. Louis. Lee, a dog groomer, claims the noncompete prevents him from working.

A Walk in the Park has tried to foster some grassroots opposition to the lawsuit. The following briefly appeared on the company's website:

WE NEED YOUR HELP!

A Walk in the Park is currently under attack. We hosted our Grand Opening Party on Sunday, November 8th from 2-6pm and posted that information on our website (awalkintheparkgrooming.com). At 2pm on that Sunday, in front of our guests, we were served by Petsmart’s attorneys. Petsmart, Inc. is suing us under a “non-compete” clause and threatens to shut our doors.

The entire posting goes into much greater detail. We'll continue to monitor the suit.

Happy Thanksgiving to you and your family.

Larry Johnson Update

Rob Radcliff — Fri, 20 Nov 2009 05:40:03 -0600

An update on Larry Johnson: He's found refuge with the team of last resort, the Cincinnati Bengals.

A good question was raised in response to the Larry Johnson post last week:

Would incidents like this be reduced if companies had a social media policy in place and provided guidance on acceptable use? It's seems as though having a policy that's made available and signed by employees could make it easier to terminate employees that cause harm via social media.

Most companies have some type of policy that cover internet use which is usually applicable to social media. They range, as we have discussed, from some that outright prohibit social media use to those that actively encourage social media use. It depends on the business. As suggested, having a policy in place that an employer can point to makes legal scrutiny of a termination much easier to defend.

Tweeting Yourself Out of a Job: The Larry Johnson Story

Rob Radcliff — Thu, 12 Nov 2009 06:00:47 -0600

Most people wouldn't mind the life of an NFL running back. Get paid millions of dollars to play a game. Larry Johnson was a number 1 draft pick of the Kansas City Chiefs in 2003. He made the pro bowl and in August 2007 signed a contract that was to pay him $45 million dollars through 2012, the biggest contract in Chiefs' history.

Along the way Larry was arrested a few times, was sued, and even got into social networking. The latter would be his downfall. Johnson maintains a website, blog, and has a twitter account. Twitter has been a big player this year in the life of the professional athlete. Players have used it to criticize coaches, management, and fans. Johnson was no exception.

First he took on his Coach Todd Haley. Then he had a few exchanges with Chiefs' fans:

Along the way Johnson made a slur about gays and seemed to alienate everyone. He was suspended by the Chiefs and on the day he was to return was waived - purportedly for another tweet. It also didn't help that 32,000 Chiefs' fans signed a petition demanding his waiver.

Johnson is an extreme example of an employer's reaction to inappropriate social media use. Employers should not tolerate employees engaging in verbal warfare with customers a.k.a. fans. Johnson cost himself a few million dollars exercising his free speech.

Courtroom Observations: Non-Compete TROs.

Rob Radcliff — Thu, 05 Nov 2009 08:22:26 -0600

Over the last few weeks I've been involved in defending and applying for temporary restraining orders in non-compete/trade secret cases in Houston and Dallas County District Courts. A few observations on those proceedings:

It is much easier to get injunctive relief in Texas since after the Texas Supreme Court's rulings in Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006) and Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding. Courts are well aware that the Texas Supreme Court has eliminated many of the technical arguments that were previously used to defeat non-competes on their face. That being said, you still have to satisfy the statute.
Companies have become much smarter about drafting non-competes and non-disclosure agreements. The majority of agreements I see satisfy Texas law. They generally have a one year duration, have a reasonable geographic limitation, and in most instances are ancillary to a promise to provide some type of trade secret.
Courts want to see "blood". Not literally, but Courts need to see inequitable conduct from the alleged non-compete violator. Did they take trade secrets out the door with them? Are they calling on former customers within days of leaving? Are they trying to take employees with them? A mere suspicion is not enough to support a temporary injunction and the Texas Supreme Court has not recognized inevitable disclosure.

Depending upon your perspective, the good news is non-competes are easier to enforce from a legal standpoint. That notwithstanding, a party seeking a temporary injunction to enforce a non-compete needs to have its facts lined up to justify this type of relief.

Second Circuit Denies IBM Non-Compete Appeal

Rob Radcliff — Tue, 27 Oct 2009 10:39:47 -0600

In July we discussed IBM's non-compete case against former director David Johnson. The trial court denied IBM's injunction and IBM appealed to the Second Circuit. The Second Circuit denied IBM's appeal.

The summary order addressed IBM's failure to show a likelihood of success on the merits:

We do not reach the question because IBM failed to make sufficient showings that it had a likelihood of success on the merits or that a balance of the hardships tipped decidedly in its favor. The district court's conclusions on these issues were well-supported by the court's findings that Johnson was extremely credible, and that IBM's designated witness was much less credible chiefly because IBM's designated witness lacked familiarity with documents bearing on the controversy.

So, Johnson will continue to work with Dell which recently announced plans to purchase Perot Systems Corp. for $3.9 billion. Johnson was the former director of mergers and acquisitions at IBM and started at Dell 4 months before the Perot acquisition was announced.