After spending millions of dollars in licensing and implementation fees for a new warehouse system, Jewelry Television’s software implementation project was a failure. IBM’s unit Sterling had promised millions of dollars in savings and increased profits – none of it was true. And, to make matters worse, IBM was threatening to sue for monies owed under the contracts.
David, after having worked on failed software implementation cases against SAP, Accenture and others, lead the investigation. He worked with the company’s chief information officer, interviewed relevant witnesses, reviewed the contracts and communications with the vendor and drafted the complaint, a copy of which can be found here
The Motion to Dismiss.
IBM was represented by the international law firm of Kilpatrick Townsend & Stockton LLP, which moved to dismiss all tort claims against the vendor. David wrote the briefs opposing the motion to dismiss and won: the trial judge refused to dismiss any of the claims, in an opinion that can be found here
David was in charge of discovery, which was contentious and vigorous. He forced IBM to produce documents from other projects and won, in an opinion from the magistrate judge that can be found here
. He oversaw a massive document production and deposed the vendor’s key witnesses, including the lead salesman from the services arm of the company.
A Key Witness Flips.
After his deposition, the lead salesman told the company’s former CIO that David’s questions had left him shaken and he wanted the company to know that the vendor had, in fact, committed fraud. Based on that disclosure, discovery was re-opened and counsel for IBM were disqualified from representing the witness in a decision which can be found here
. The salesman later explained that it was because of David’s examination that he realized that the company had been misled by the software vendor and he provided a statement under oath to that effect, a copy of which can be found here
. David also deposed the CIO of a competitor whose company asserted that it too had been damaged by the vendor’s products and services. Following an unsuccessful motion in limine, this CIO’s testimony was shown to the jury.
In March 2015, David separated from Kasowitz, Benson and the client asked him if he would start his own law firm and quarterback the litigation going forward. In a conference with the judge, David argued the company’s opposition to the vendor’s motion for summary judgment. In a decision that can be found here
, the judge refused to dismiss the tort claims. Shapiro Litigation Group opposed a motion by the vendor to inspect the client’s systems and won. David also worked with the liability, damages, software and implementation methodology experts.
Expert Witness Discovery.
Shapiro Litigation Group handled all Daubert motions. The firm worked with the expert witnesses and was instrumental in both limiting the vendors’ expert testimony and obtaining a decision from the court barring them from obtaining any expert discovery from the company at all.
At the conclusion of a five-week trial, the jury returned a verdict of $39 million in favor of the plaintiff for fraud, negligent misrepresentation and breach of contract.