Things are heating up in IBM v. Johnson, the non-compete case we first wrote about a few weeks ago. IBM is trying to prevent its former head of M&A from starting work at Dell until his non-complete runs out.
This week, IBM was in court trying to get an injunction against Johnson and we got our first glimpse into his defense.
It’s a doozy. After the jump.
Hopefully there’s more to it than this, but according to Bloomberg, Johnson’s defense is that the contract is unenforceable because he signed it in the IBM signature block.
Huh?
He seems to think that because he signed three inches to the left of where he was supposed to sign it’s not a valid signature? And the best part is that he’s now saying he did it that way on purpose!
Johnson told [U.S. District Judge Stephen] Robinson he signed the agreement on the space where IBM was supposed to sign because he thought it would prevent the contract from taking effect. His lawyers said it was up to IBM’s human resources department to make him to sign the agreement or punish him — something that didn’t happen.
“The notion that Mr. Johnson intended to be bound by that agreement is absurd,” Johnson’s lawyer, Michael Banks [of Morgan Lewis's Philadelphia office], said at the hearing.
IBM isn’t interested in playing that game.
IBM said Johnson was “deceptive” and that his incorrectly placed signature was enough to bind him.
“Mr. Johnson signed the noncompete agreement,” IBM’s lawyer, Evan Chesler [of Cravath] said at the hearing. “Had he not signed it, we wouldn’t be here today. He chose to pursue a much more calculating route than that.”
It’s one thing to say the noncompete is overbroad, unduly burdensome, vague or unenforceable because of some other opprobrious term, but this just seems like grasping at straws.
Is there something magical we don’t know about employment agreements that the normal rules of contract execution don’t apply? We’re hoping Ken Adams will have something to say on the matter.
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