It was not a resounding victory for those who want to job hop, but top executives who formerly worked at State Street Global Advisors of Boston have been allowed to join a competitor despite a non-compete agreement SSgA contends prohibited the move.
The non-compete agreement that SSgA had with Dean Barr, Joshua Feuerman and Richard Goldman was too ambiguous to keep the executives from joining Deutsche Asset Management of New York, a Massachusetts state court judge has ruled. SSgA also has failed to prove its allegation that the executives divulged trade secrets to Deutsche Asset Management, Judge Raymond J. Brassard said in a decision dated Oct. 22.
Despite those key rulings, however, the three executives cannot solicit SSgA employees or clients until Feb. 28, 2001, Brassard said. Brassard's ruling came in response to a request from SSgA's parent company, State Street Corp. of Boston, to temporarily stop the executives from joining Deutsche at least until the conclusion of a trial in the case. The dispute now is scheduled to proceed through pre-trial fact-finding and possibly a trial. The date Feb. 28, 2001, is 18 months from the time the executives left SSgA, the period covered by the executives' non-compete agreements.
A spokesperson for SSgA declined to comment. Officials at Deutsche with knowledge of the matter did not return a call seeking comment.
Barr, Feuerman and Goldman left SSgA on Sept. 1. State Street filed suit against the three on Sept. 3 in state court in Boston. Barr was chief investment officer of global active quantitative strategies at SSgA, Feuerman was a portfolio manager and Goldman was principal in charge of corporate sales.
The ruling in the SSgA matter marks the second time in the last two years that a Massachusetts judge has permitted top money management executives who had signed non-compete provisions to leave their firms. In both instances, however, the courts have prohibited the executives from taking business from their former employers.
In February 1998, a Massachusetts court ruled that Arnold Schneider, a former portfolio manager at Wellington Management Company of Boston, could start his own business despite a non- compete clause but could not take Wellington clients with him to his new firm.
The ruling in the SSgA case turned on unusual facts. The SSgA non-compete agreement provided that the SSgA executives could not join a firm listed in the top five firms as measured by assets under management in the most recent annual rankings in Institutional Investor or Crain Communications' Pensions and Investments, two trade magazines. SSgA was not to be counted for the purposes of the non-compete if the firm was listed in the top five.
Bankers Trust of New York, a firm that Deutsche acquired in June, was ranked as the sixth largest firm in Pensions and Investments' May issue, Brassard said. SSgA was ranked among the top five. Based on the rankings, SSgA argued that the executives could not join Deutsche.
Deutsche, however, argued that later issues of Pensions and Investments and Institutional Investor - which ranked Bankers Trust no higher than seventh in assets - applied to the non-compete, permitting the executives to leave.
Because of the ambiguity of what ranking applied to the non-compete, it is unlikely that SSgA will prevail at trial on the issue, Brassard ruled. For that reason, he denied SSgA's request to prohibit the executives from joining Deutsche now.
SSgA is likely to succeed on its claims that Goldman solicited clients to join Deutsche, Brassard ruled. There was evidence that the executives who left SSgA directly or indirectly solicited SSgA employees to join Deutsche, Brassard ruled. SSgA also likely would be harmed by a major defection of top executives to another firm, Brassard said.
