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Attorney: Emmet J. Bondurant, 64 Firm: Atlanta’s Bondurant, Mixson & Elmore Case: Avnet Inc. v. Inman, 93-4396-D (Cir. Ct., Hillsborough Co., Fla.) Winning Points: � Establish an affirmative defense. � Use cross-examination to put on defense case. � Time big points just before breaks, so jurors have time to think about them. For Emmet J. Bondurant, representing the underdog in high-stakes litigation is a way of life. In the 1960s, he won a U.S. Supreme Court decision ordering the state of Georgia to conform its congressional districts to the one man, one vote rule. In the 1980s, he was the attorney for lawyer Elizabeth Hishon when she successfully sued King & Spalding for bias over the firm’s failure to make her a partner. This year, he won a temporary restraining order halting Georgia’s use of the electric chair. In his civil practice — in which he has won about 80 percent of the more than 100 trials he has conducted — Bondurant often represents smaller companies against larger ones, individuals against corporations, corporate challengers against industry leaders. “If you’re afraid to represent an underdog in litigation, you don’t belong in the legal profession,” he says. “We think even the rich and arrogant deserved to be sued.” Recently, Bondurant defended eight individuals and Wyle Laboratories Inc. in a lawsuit filed against them by Avnet Inc., the nation’s largest electronics distributor. The suit arose from Avnet’s April 1993 acquisition for nearly $500 million of Dallas-based Hall-Mark Electronics Corp., then the nation’s No. 3 electronics distributor. Within three weeks, 78 Hall-Mark employees had left that company and gone to work at Wyle, which at the time was the No. 8 electronics distributor, Bondurant says. Avnet sued eight of these former Hall-Mark employees and Wyle as well, charging a conspiracy between the employees and Wyle to spirit away the Hall-Mark workers and customers, thus diminishing the value of Avnet’s purchase of Hall-Mark. At the center of Avnet’s conspiracy theory, he says, were “notes made by a Wyle human resources employee, handwritten on a typed memorandum.” This memo “stated that Jim Haraway, a Hall-Mark senior vice president, who joined Wyle, ‘hope[d] to close on at least five managers within Hall-Mark and feels each can bring about 10 good people with them.’ ” Wyle’s director of human resources noted in the margins of the memo: “ Raid. Dangerous! — I see potential problems with these notes — Can we retract?” Avnet alleged that this memo and the notes were evidence of a conspiracy, Bondurant says. “Avnet bolstered its conspiracy theory by pointing to thousands of telephone records reflecting repeated calls between Haraway and the managers who worked for him at Hall-Mark, and between managers and salespeople in nine of Hall-Mark’s branch offices.” The defense countered that the memo was written after Haraway had already left Wyle; that the “raid” note was meaningless, penned by an employee who was “misinformed about the legality of Haraway’s plans”; and that the phone calls were the natural consequence of a merger announcement. MORE THAN A COUNTERPUNCH But, Bondurant says, the defense did not simply counterpunch. “In any defense, you have to develop affirmative evidence,” Bondurant believes. The defense found this evidence in Avnet documents and the depositions taken of Avnet’s top executives. The defense used an internal report from Avnet, for example, to bolster the defense argument that Avnet did not regard the department employees as essential and would have laid off many of them. The report, he notes, said that Avnet, after the merger, “planned to reduce their head count by 700 people.” In a deposition, Bondurant confronted the president of Avnet, Roy Vallee, with the contracts Avnet had given to seven Hall-Mark employees before signing the acquisition agreement. None of the defectors, including the defendants, was brought under contract: “Therefore Avnet didn’t regard these people as key.” Vallee confirmed that Avnet was free to fire every one of the Hall-Mark defectors. In his opening, Bondurant stressed the Hall-Mark employees’ vulnerability. “These were at-will people. Avnet could get rid of them at any time. Avnet was intending to get rid of them,” he says. He played the underdog theme to the hilt, using bar charts to show the relative sizes of the companies, casting the dispute in David and Goliath terms. The turning point was his cross of Vallee. On direct, Vallee had fared well. The overall impression was that the Hall-Mark employees “had no reason to fear staying and Avnet was hurt badly,” by the defections, Bondurant says. “Many lawyers believe that cross has to be short and quick,” he adds. “But Vallee was a witness we could use to put on our case.” Bondurant tried to time major points and concessions to occur right before breaks. “As a general rule, if you can, you try to score a point that the jurors will take away and think about” that night or that weekend or on the drive home from the courtroom, he says. He zeroed in on a meeting Vallee had had with Haraway. Hall-Mark officials had offered Haraway a senior position in the merged company, Bondurant reports. “All the people who reported to him in Hall-Mark would continue to report to him at Avnet,” he adds. But when Haraway had his first meeting with Vallee, he says, “Vallee repudiated the commitment to Jim. Jim left that meeting and immediately called Wyle.” Vallee confirmed that he had withdrawn the commitment and that he knew Haraway was upset and was likely to leave the merged company. Bondurant asked, “Did you reconsider to try to keep Mr. Haraway at Hall-Mark?” “I didn’t change my mind.” “So you were prepared to take the risk that Mr. Haraway could choose to go somewhere else rather than remain after you broke the commitment?” “Yes, I did,” the witness replied. The court recessed for the weekend. EXPLODING AN IMAGE The plaintiff had described the acquisition of Hall-Mark as “a merger among equals,” Bondurant says, and the Avnet lawyers and witnesses would use a gesture putting their hands together so the fingers would interlace. “They’d form a daisy chain, where Vallee was the CEO, but the next highest [executive] was from Hall-Mark. It was a verbal metaphor with a physical gesture. We thought it came out of their jury research.” LOOKING AT THE DAISIES Bondurant, just before a break, approached Vallee and asked him, “Let’s examine that daisy chain and look at the merger a year later.” He turned to a chart of the management from both companies at the beginning of the merger and named an executive from Avnet. Vallee confirmed that he was still at the company. Bondurant named an executive from Hall-Mark. Vallee confirmed the man was gone, and Bondurant “X’d him out” on the chart. He continued down the list. “Pretty soon the only daisies that were standing were the Avnet daisies. The metaphor never showed up for the rest of the trial,” of the plaintiff’s case, he recalls. “They never did the gesture again.” In fact, an effective employment of the daisy theme came in the testimony of one of the individual defendants, who had not been offered a contract after the merger. The witness testified, Bondurant recounts, that “I was not an important enough daisy.” Avnet was seeking $154 million in compensatory damages. But on Feb. 4, 2000, a Tampa, Fla., jury rejected all the plaintiff’s claims. There was no appeal.

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