IBM Must Pay BMC $1.6 Billion for Poached AT&T Account

(Bloomberg) — International Business Machines Corp. must pay $1.6 billion to BMC Software Inc. for swapping in its own software while servicing their mutual client, a federal judge ruled.

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US District Judge Gray Miller in Houston on Monday rejected IBM’s claim that the mutual client, AT&T Corp., opted to switch software products on its own. Miller awarded damages based on his earlier determination that IBM’s role in the decision to dump BMC “smacked of intentional wrongdoing.” His judgment came after a seven-day non-jury trial in March.

IBM and BMC had long operated under a carefully negotiated agreement that forbade IBM to encourage mutual clients to switch to its own competing software product line. BMC sued IBM in 2017 claiming its rival planned to breach their agreement and poach AT&T’s software business when the two companies renewed their power-sharing deal in 2015.

IBM countered that AT&T dumped BMC’s products and jumped to IBM for its own reasons, which it claimed was fair game under its pact with BMC.

‘Pennies on the Dollar’

The Armonk, New York, company “believed — especially in light of BMC’s reluctance to engage in litigation — that it could ‘always settle for a small percentage of the claim’ or for ‘pennies on the dollar,’” Miller wrote, citing trial evidence. The judge said “IBM’s conduct vis-à-vis BMC offends the sense of justice and propriety the public expects from American business.”

IBM said it had “acted in good faith in every respect in this engagement” and vowed to appeal.

“This verdict is entirely unsupported by fact and law, and IBM intends to pursue complete reversal on appeal,” the company said in a statement. “The decision to remove BMC Software technology from its mainframes rested solely with AT&T, as was recognized by the court and confirmed in testimony from AT&T representatives admitted at trial.”

BMC didn’t immediately respond to a message seeking comment on the ruling.

Punitive Damages

BMC had asked the court to award $791 million for IBM’s breach of their agreement and $104 million for lost profits on the AT&T contract. The Houston-based software company also asked Miller to consider tripling the damages if he found that IBM intentionally interfered with BMC’s client relationship.

Miller agreed that IBM fraudulently induced BMC to sign the 2015 power-sharing agreement barring IBM from poaching mutual clients. He awarded $717.7 million in actual contractual damages, $168.2 million in prejudgment interest and an additional $717.7 million in punitive damages “based on fraud by clear and convincing evidence.” He tacked on post-judgment interest of roughly 2%, compounding annually.

“IBM’s business practices — including the routine eschewal of rules — merit a proportional punitive damages award,” he explained.

He rejected BMC’s bid for findings of lost profits, additional breaches of contract and unfair competition but said that if a reviewing court finds that BMC isn’t entitled to the judgment he issued, the company could come back and seek recovery under one of its alternative legal theories.

The judge said he calculated damages using BMC’s fraudulent-inducement theory because it “affords BMC the greatest recovery” of several plausible damages arguments it presented.

The case is BMC Software Inc. v. International Business Machines Corp., 17-cv-02254, US District Court, Southern District of Texas (Houston).

(Adds quotations from ruling in second and third sections. An earlier version of this story incorrectly stated the judge’s fraudulent-inducement finding in third.)

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