New practice plans at Data#3?
According to evidence presented to Justice Black, McCabe allegedly met with Data#3 CEO, Laurence Baynham, on or about 1 June 2017, and subsequently spoke to several other senior executives of DXC about the possibility of joining another business “similar to DXC”.
McCabe then allegedly prepared a presentation document at Data#3’s request, according to the evidence presented to Justice Black, headed “Data#3 Investment Opportunity June 2017”.
“That document identified the purpose, presumably of the business to be created within Data3, as: ‘an agile and customer focused Infrastructure Practice specialising in the design, implementation, and support of customised solutions to meet our customers [sic] business needs’,” Justice Black said in his judgement.
“That description provides support for the overlap between that business and DXC’s business.”
According to Black, the Data#3 presentation also allegedly referred to an opportunity to hire “20 key personnel” from DXC and to several advantages for Data#3 in that opportunity.
Furthermore, it also allegedly identified three entities as “immediate targets for urgent engagement and transition”, which were clients of DXC.
In fact, a page headed, “Opportunities NSW”, in the Data#3 presentation allegedly identified several clients, described as “customers we believe we can shift”, according to Justice Black’s judgement, and identified their actual revenue for the 2017 financial year and their “pipeline” revenue for 2018 financial year.
“Those clients were clients of DXC,” Justice Black said. “Many of them were government entities, which publicly release information as to the projects given to DXC and other suppliers and their value; and several others were corporate entities as to which such information may not be publicly available, although there is evidence that substantial projects are often reported in the trade media and industry publications.”
This point has been backed up by McCabe’s legal team, which has pointed to the evidence that revenue figures in respect of government contracts are publicly available.
McCabe’s legal team also submitted to Justice Black that there is no reason to think that past revenue information of this nature would provide any “head start or springboard” to Data#3 so as to support a “springboard injunction” of the kind sought by DXC.
Justice Black, however, noted that the Data#3 presentation also allegedly identified the basis on which the “relevant persons” were looking to be remunerated for their potential engagement with Data#3.
“There is evidence of a degree of planning in respect of the transition of several employees of DXC to Data#3, including a spreadsheet listing potential resignation dates of employees and their potential start dates with Data3,” Justice Black said.
"In the result, DXC has had some success in respect of its application. That success was founded on confidentiality and the contractual restraint of trade, not on the claim for an injunction under the “springboard” principle," he said.
Following the decision, a spokesperson for DXC told ARN: “We are pleased that the contractual restraints in relation to Robert McCabe, the former business lead for DXC Connect, have been upheld in interlocutory proceedings. At this time, we respectfully decline further comment given ongoing legal proceedings.”
It should be noted that Data#3 has not been joined in the case, and is not subject to any of the allegations.
The case continues.
Neither McCabe nor Deibe had responded to ARN's queries at the time of writing.