Personal blog of Yzmir Ramirez

Earlier this month, when Nutanix announced it was hiring former VMware COO Rajiv Ramaswami as CEO, it looked like a good match. What’s more, it pulled a key player from a market rival. Well, it seems VMware took exception to losing the executive, and filed a lawsuit against him yesterday for breach of contract.

The company is claiming that Ramaswami had inside knowledge of the key plans of his former company and that he should have told them that he was interviewing for a job at a rival organization.

“Rajiv Ramaswami failed to honor his fiduciary and contractual obligations to VMware. For at least two months before resigning from the company, at the same time he was working with senior leadership to shape VMware’s key strategic vision and direction, Mr. Ramaswami also was secretly meeting with at least the CEO, CFO, and apparently the entire Board of Directors of Nutanix, Inc. to become Nutanix’s Chief Executive Officer. He joined Nutanix as its CEO only two days after leaving VMware,” the company wrote in a statement.

As you can imagine, Nutanix didn’t agree, countering in a statement of its own that, “VMware’s lawsuit seeks to make interviewing for a new job wrongful. We view VMware’s misguided action as a response to losing a deeply valued and respected member of its leadership team. Mr. Ramaswami and Nutanix have gone above and beyond to be proactive and cooperative with VMware throughout the transition.”

At the time of the hiring, analyst Holger Mueller from Constellation Research noted that the two companies were primary competitors and hiring Ramawami was was a big win for Nutanix. “So hiring Ramaswami brings both an expert for multi-cloud to the Nutanix helm, as well as weakening a key competitor from a talent perspective,” he told me earlier this month.

Mueller doesn’t see much chance of the suit succeeding. “It’s been a long time since the last lawsuit happened in Silicon Valley [involving] a tech exec jumping ship. Being an ‘Employment at Will’ state, these suits are typically unsuccessful,” he told me this morning.

He added, “The interesting part of the VMware vs Nutanix lawsuit is, does a high ranking executive interviewing a competitor equal a break of confidentiality by itself, or does material information have to be breached to reach the point. Traditionally the right to (confidentially) interview has been protected by the courts,” he said.

It’s unclear what the end game would be in this type of legal action, but it does complicate matters for Nutanix as it transitions to a new chief executive. Ramaswami took over from co-founder Dheeraj Pandey, who announced plans to leave the post last summer.

The lawsuit was filed Monday in Superior Court of the State of California, County of Santa Clara.

The JEDI contract award process might never be done. Following legal challenges from Amazon after the Pentagon’s massive, $10 billion cloud contract was awarded to Microsoft in October, the Pentagon indicated in court documents last night that it wishes to reconsider the award.

It’s just the latest plot twist in an epic government procurement saga.

Here’s what we know. The Pentagon filing is based on Amazon’s complaints about the technical part of the deal only. Amazon has said that it believes political interference influenced the awarding of the contract. However, the cloud computing giant also believes it beat Microsoft on the technical merits in a majority of instances required in the request for proposals issued by the Pentagon.

In fact, sources told TechCrunch, “AWS’s protest identified evaluation errors, clear deficiencies and unmistakable bias in six of the eight evaluation factors.”

Obviously Amazon was happy to hear this news. “We are pleased that the DoD has acknowledged ‘substantial and legitimate’ issues that affected the JEDI award decision, and that corrective action is necessary,” a spokesperson stated.

“We look forward to complete, fair, and effective corrective action that fully insulates the re-evaluation from political influence and corrects the many issues affecting the initial flawed award.”

As would expect, Microsoft thinks that the DoD made the correct choice, and believes the review will bear that out. “Over two years, the DoD reviewed dozens of factors and sub factors and found Microsoft equal or superior to AWS on every factor. We remain confident that Microsoft’s proposal was technologically superior, continues to offer the best value, and is the right choice for the DoD,” Microsoft VP of communications Frank Shaw said.

The court granted the Pentagon 120 days to review the results again, but indicated it could take longer. In the meantime, the project is at a standstill.

On Friday, the court issued a ruling that Amazon was likely to succeed on its complaint on merit, and that could have been the impetus of this latest action by the Pentagon.

While the political influence piece might not be overtly part of this filing, it does lurk in the background. The president has made it clear that he doesn’t like Amazon founder and CEO Jeff Bezos, who also owns The Washington Post. As we wrote last year:

Amazon, for instance, could point to Jim Mattis’ book where he wrote that the president told the then Defense Secretary to “screw Bezos out of that $10 billion contract.” Mattis says he refused, saying he would go by the book, but it certainly leaves the door open to a conflict question.

As we previously reported, AWS CEO Andy Jassy stated at a press event at AWS re:Invent in December that the company believed there was political bias at play in the decision-making process.

“What I would say is that it’s fairly obvious that we feel pretty strongly that it was not adjudicated fairly,” he said. He added, “I think that we ended up with a situation where there was political interference. When you have a sitting president, who has shared openly his disdain for a company, and the leader of that company, it makes it really difficult for government agencies, including the DoD, to make objective decisions without fear of reprisal.”

The story has been updated with a comment from Microsoft. We have requested comment from DoD and will update the story should they respond.

When the Department of Defense finally made a decision in October on the decade-long, $10 billion JEDI cloud contract, it seemed that Microsoft had won. But nothing has been simple about this deal from the earliest days, so it shouldn’t come as a surprise that last night Amazon filed a motion to stop work on the project until the court decides on its protest of the DoD’s decision.

The company announced on November 22nd that it had filed suit in the U.S. Court of Federal Claims protesting the DoD’s decision to select Microsoft. Last night’s motion is an extension of that move to put the project on hold until the court decides on the merits of the case.

Sources tell us that AWS decided not protest the start of initial JEDI activities at the time of the court filing in November as an accommodation made at DoD’s request. DoD declined to comment on that.

As for why they are doing it now, an Amazon spokesperson had this to say in a statement last night: “It is common practice to stay contract performance while a protest is pending and it’s important that the numerous evaluation errors and blatant political interference that impacted the JEDI award decision be reviewed. AWS is absolutely committed to supporting the DoD’s modernization efforts and to an expeditious legal process that resolves this matter as quickly as possible.”

As we previously reported, the statement echoes sentiments AWS CEO Andy Jassy made at a press event during AWS re:Invent in December:

“I would say is that it’s fairly obvious that we feel pretty strongly that it was not adjudicated fairly,” he said. He added, “I think that we ended up with a situation where there was political interference. When you have a sitting president, who has shared openly his disdain for a company, and the leader of that company, it makes it really difficult for government agencies, including the DoD, to make objective decisions without fear of reprisal.”

This is just the latest turn in a contract procurement process for the ages. It will now be up to the court to decide if the project should stop or not, and beyond that if the decision process was carried out fairly.

You really have to give Oracle a lot of points for persistence, especially where the $10 billion JEDI cloud contract procurement process is concerned. For more than a year, the company has been complaining  across every legal and government channel it can think of. In spite of every attempt to find some issue with the process, it has failed every time. That did not stop it today from filing a fresh appeal of last month’s federal court decision that found against the company.

Oracle refuses to go quietly into that good night, not when there are $10 billion federal dollars on the line, and today the company announced it was appealing Federal Claims Court Senior Judge Eric Bruggink’s decision. This time they are going back to that old chestnut that the single-award nature of the JEDI procurement process is illegal:

“The Court of Federal Claims opinion in the JEDI bid protest describes the JEDI procurement as unlawful, notwithstanding dismissal of the protest solely on the legal technicality of Oracle’s purported lack of standing. Federal procurement laws specifically bar single award procurements such as JEDI absent satisfying specific, mandatory requirements, and the Court in its opinion clearly found DoD did not satisfy these requirements. The opinion also acknowledges that the procurement suffers from many significant conflicts of interest. These conflicts violate the law and undermine the public trust. As a threshold matter, we believe that the determination of no standing is wrong as a matter of law, and the very analysis in the opinion compels a determination that the procurement was unlawful on several grounds,” Oracle’s General Counsel Dorian Daley said in a statement.

In December, Oracle sued the government for $10 billion, at the time focusing mostly on a perceived conflict of interest involving a former Amazon employee named Deap Ubhi. He worked for Amazon prior to joining the DOD, where he worked on a committee of people writing the RFP requirements, and then returned to Amazon later. The DOD investigated this issue twice, and found no evidence he violated federal conflict of interest of laws.

The court ultimately agreed with the DOD’s finding last month, ruling that Oracle had failed to provide evidence of a conflict, or that it had impact on the procurement process. Judge Bruggink wrote at the time:

We conclude as well that the contracting officer’s findings that an organizational conflict of interest does not exist and that individual conflicts of interest did not impact the procurement, were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Plaintiff’s motion for judgment on the administrative record is therefore denied.

The company started complaining and cajoling even before the JEDI RFP process started. The Washington Post reported that Oracle’s Safra Catz met with the president in April, 2018 to complain that the process was unfairly stacked in favor of Amazon, which happens to be the cloud market share leader by a significant margin, with more than double that of its next closest rival, Microsoft.

Later, the company filed an appeal with the Government Accountability Office, which found no issue with the RFP process. The DOD, which has insisted all along there was no conflict in the process, also did in an internal investigation and found no wrong-doing.

The president got involved last month when he ordered Defense Secretary Mark T. Esper to look into the idea that, once again, the process has favored Amazon. That investigation is ongoing. The DOD did name two finalists, Amazon and Microsoft, in April, but has yet to name the winner as the protests, court cases and investigations continue.

The controversy in part involves the nature of the contract itself. It is potentially a decade-long undertaking to build the cloud infrastructure for the DOD, involves the award of a single vendor (although there are several opt-out clauses throughout the term of the contract) and involves $10 billion and the potential for much more government work. That every tech company is salivating for that contract is hardly surprising, but Oracle alone continues to protest at every turn.

The winner was supposed to be announced this month, but with the Pentagon investigation in progress, and another court case underway, it could be some time before we hear who the winner is.

Three years after closing a $9.3 billion deal to acquire NetSuite, several Oracle board members have written an extraordinary letter to the Delaware Court, approving a shareholder lawsuit against company executives Larry Ellison and Safra Catz over the 2016 deal. Reuters broke this story.

According to Reuters’ Alison Frankel, three board members, including former U.S. Defense Secretary Leon Panetta, sent a letter on August 15th to Sam Glasscock III, vice chancellor for the Court of the Chancery in Georgetown, Delaware, approving the suit as members of a special board of directors entity known as the Special Litigation Committee.

The lawsuit is what is called in legal parlance a derivative suit. According to the site Justia, this type of suit is filed in cases like this. “Since shareholders are generally allowed to file a lawsuit in the event that a corporation has refused to file one on its own behalf, many derivative suits are brought against a particular officer or director of the corporation for breach of contract or breach of fiduciary duty,” the Justia site explained.

The letter went on to say there was an attempt to settle this suit, which was originally launched in 2017, through negotiation outside of court, but when that attempt failed, the directors wrote this letter to the court stating that the suit should be allowed to proceed.

As Frankel wrote in her article, the lawsuit, which was originally filed by the Firemen’s Retirement System of St. Louis, could be worth billions:

One of the lead lawyers for the Firemen’s fund, Joel Friedlander of Friedlander & Gorris, said at a hearing in June that shareholders believe the breach-of-duty claims against Oracle and NetSuite executives are worth billions of dollars. So in last week’s letter, Oracle’s board effectively unleashed plaintiffs’ lawyers to seek ten-figure damages against its own members.

It’s worth pointing out, as we reported at the time of the NetSuite acquisition, that Larry Ellison was involved in setting up NetSuite in the late 1990s and was a major shareholder at the time of the deal.

Oracle was struggling to find its cloud footing in 2016, and it was believed that by buying an established SaaS player like NetSuite, it could begin to build out its cloud business much faster than trying to develop something like it internally. A June Synergy Research SaaS marketshare report, while admitting the market was fragmented, still showed Oracle was far behind the pack in spite of that deal three years ago.

While there have been bigger deals in tech M&A history, including Salesforce’s acquisition of Tableau for $15.7 billion earlier this year, it’s still stands with some of the largest.

We reached out to Oracle regarding this story, but it declined to comment.

A line in a new court filing by the Department of Defense suggests that it might reopen the investigation into a possible conflict of interest in the JEDI contract RFP process involving a former AWS employee. The story has attracted a great deal of attention in major news publications, including The Washington Post and The Wall Street Journal, but a Pentagon spokesperson has told TechCrunch that nothing has changed.

In the document, filed with the court on Wednesday, the government’s legal representatives sought to outline its legal arguments in the case. The line that attracted so much attention stated, “Now that Amazon has submitted a proposal, the contracting officer is considering whether Amazon’s re-hiring Mr. Ubhi creates an OCI that cannot be avoided, mitigated, or neutralized.” OCI stands for Organizational Conflict of Interest in DoD lingo.

When asked about this specific passage, Pentagon spokesperson Heather Babb made clear the conflict had been investigated earlier and that Ubhi had recused himself from the process. “During his employment with DDS, Mr. Deap Ubhi recused himself from work related to the JEDI contract. DOD has investigated this issue, and we have determined that Mr. Ubhi complied with all necessary laws and regulations,” Babb told TechCrunch.

She repeated that statement when asked specifically about the language in the DoD’s filing. Ubhi did work at Amazon prior to joining the DoD and returned to work for them after he left.

The Department of Defense’s decade-long, $10 billion JEDI cloud contract process has attracted a lot of attention, and not just for the size of the deal. The Pentagon has said this will be a winner-take-all affair. Oracle and IBM have filed formal complaints and Oracle filed a lawsuit in December alleging, among other things, that there was a conflict of interest by Ubhi, and that they believed the single-vendor approach was designed to favor AWS. The Pentagon has denied these allegations.

The DoD completed the RFP process at the end of October and is expected to choose the winning vendor in April.

Just when you didn’t think there could be any more drama over the Pentagon’s decade-long, $10 billion JEDI contract RFP, the plot thickened again last week when Amazon Web Services (AWS) joined the U.S. government as a defendant in Oracle’s lawsuit over the Pentagon’s handling of the contract RFP process.

Earlier this month, Oracle filed a complaint in the United States Court of Federal Claims alleging that the JEDI RFP process unfairly favored Amazon, that the single-vendor decision (which won’t be made until April) violates federal procurement rules and that two members of the JEDI team had a conflict of interest because of previous affiliations with Amazon Web Services.

AWS filed paperwork to join the case, stating that because of the claims being made by Oracle, it had a direct stake in the outcome. “Oracle’s Complaint specifically alleges conflicts of interest involving AWS. Thus, AWS has direct and substantial economic interests at stake in this case, and its disposition clearly could impair those interests,” the company’s attorneys stated in the motion.

The Motion to Intervene as a Defendant was approved by United States Court of Federal Claims Senior Judge, Eric G. Bruggink the same day.

Oracle filed a complaint alleging essentially the same issues with the Government Accountability Office earlier this year, but the GAO found no wrong-doing in a ruling last month. Oracle decided to take the case to court, where it has had some high-profile wins in recent years, including its case against Google over its use of the Java APIs.

The JEDI contract RFP has attracted attention for the length, the amount of money at stake and the single-vendor selection decision. This is a contract that every cloud company badly wants to have. Oracle has made it clear it’s not giving up without a fight, while Amazon Web Services intends to defend itself against Oracle’s claims.

Oracle filed suit in federal court last week alleging yet again that the decade-long $10 billion Pentagon JEDI contract with its single-vendor award is unfair and illegal. The complaint, which has been sealed at Oracle’s request, is available in the public record with redactions.

If all of this sounds familiar, it’s because it’s the same argument the company used when it filed a similar complaint with the Government Accountability Office (GAO) last August. The GAO ruled against Oracle last month stating, “…the Defense Department’s decision to pursue a single-award approach to obtain these cloud services is consistent with applicable statutes (and regulations) because the agency reasonably determined that a single-award approach is in the government’s best interests for various reasons, including national security concerns, as the statute allows.”

That hasn’t stopped Oracle from trying one more time, this time filing suit in the United States Court of Federal Claims this week, alleging pretty much the same thing it did with the GAO, that the process was unfair and violated federal procurement law.

Oracle Senior Vice President Ken Glueck reiterated this point in a statement to TechCrunch. “The technology industry is innovating around next generation cloud at an unprecedented pace and JEDI as currently envisioned virtually assures DoD will be locked into legacy cloud for a decade or more. The single-award approach is contrary to well established procurement requirements and is out of sync with industry’s multi-cloud strategy, which promotes constant competition, fosters rapid innovation and lowers prices,” he said, echoing the language in the complaint.

The JEDI contract process is about determining the cloud strategy for the Department of Defense for the next decade, but it’s important to point out that even though it is framed as a 10-year contract, it has been designed with several opt-out points for DOD with an initial two-year option, two three-year options and a final two-year option, leaving open the possibility it might never go the full 10 years.

Oracle has complained for months that it believes the contract has been written to favor the industry leader, Amazon Web Services. Company co-CEO Safra Catz even complained directly to the president in April, before the RFP process even started. IBM filed a similar protest in October, citing many of the same arguments. Oracle’s federal court complaint filing cites the IBM complaint and language from other bidders including, Google (which has since withdrawn from the process) and Microsoft that supports their point that a multi-vendor solution would make more sense.

The Department of Justice, which represents the U.S. government in the complaint, declined to comment.

The DOD also indicated it wouldn’t comment on pending litigation, but in September spokesperson Heather Babb told TechCrunch that the contract RFP was not written to favor any vendor in advance. “The JEDI Cloud final RFP reflects the unique and critical needs of DOD, employing the best practices of competitive pricing and security. No vendors have been pre-selected,” she said at the time.

That hasn’t stopped Oracle from continually complaining about the process to whomever would listen. This time they have literally made a federal case out of it. The lawsuit is only the latest move by the company. It’s worth pointing out that the RFP process closed in October and a winner won’t be chosen until April. In other words, they appear to be assuming they will lose before the vendor selection process is even completed.

U.K. entrepreneur turned billionaire investor Mike Lynch has been charged with fraud in the U.S. over the 2011 sale of his enterprise software company.

Lynch sold Autonomy, the big data company he founded back in 1996, to computer giant HP for around $11 billion some seven years ago.

But within a year around three-quarters of the value of the business had been written off, with HP accusing Autonomy’s management of accounting misrepresentations and disclosure failures.

Lynch has always rejected the allegations, and after HP sought to sue him in U.K. courts he countersued in 2015.

Meanwhile, the U.K.’s own Serious Fraud Office dropped an investigation into the Autonomy sale in 2015 — finding “insufficient evidence for a realistic prospect of conviction.”

But now the DoJ has filed charges in a San Francisco court, accusing Lynch and other senior Autonomy executives of making false statements that inflated the value of the company.

They face 14 counts of conspiracy and fraud, according to Reuters — a charge that carries a maximum penalty of 20 years in prison.

We’ve reached out to Lynch’s fund, Invoke Capital, for comment on the latest development.

The BBC has obtained a statement from his lawyers, Chris Morvillo of Clifford Chance and Reid Weingarten of Steptoe & Johnson, which describes the indictment as “a travesty of justice,”

The statement also claims Lynch is being made a scapegoat for HP’s failures, framing the allegations as a business dispute over the application of U.K. accounting standards. 

Two years ago we interviewed Lynch onstage at TechCrunch Disrupt London and he mocked the morass of allegations still swirling around the acquisition as “spin and bullshit.”

Following the latest developments, the BBC reports that Lynch has stepped down as a scientific adviser to the U.K. government.

“Dr. Lynch has decided to resign his membership of the CST [Council for Science and Technology] with immediate effect. We appreciate the valuable contribution he has made to the CST in recent years,” a government spokesperson told it.