P is a management consulting and strategic planning company. P is an indirect subsidiary of Marsh & McLennan Companies, Inc. (MMC). MMC acquired Temple Barker Sloane, Inc. (TBS). MMC then acquired Strategic Planning Associates, Inc. (SPA), by merging it with TBS. The resulting company was P. Ds (Wilde, Silverman, and Dewhurst) were employed by SPA, and subsequently by P, as management consultants. Ds (Wilde, Silverman, and Dewhurst) were employed by SPA, and subsequently by P, as management consultants. Each defendant quickly rose through the ranks. Wilde (P) became a vice president of SPA in 1984 and an executive vice-president and member of SPA's Policy Committee in 1988 and served on P's Board of Directors and P's 'inside board' from approximately October 1991 until his resignation on April 2, 1993. Silverman (P) became a vice president in 1984 and became an executive vice president and Policy Committee member in 1988. He too served on P's Board of Directors and the 'inside board' from approximately October 1991 until his resignation on April 2, 1993. Dewhurst (P) joined SPA in 1980, became a vice president of SPA in 1984, and served in that position until his resignation on March 15, 1993. Ds executed an employment agreement with SPA wherein they refrain from 'rendering competitive services' to any client or active prospect of SPA, or from hiring or assisting in hiring any SPA employee, for a period of one year following the termination of employment with SPA. In 1989, as a condition of the merger between TBS and SPA, P required five senior employee-stockholders of SPA, including Wilde (D) and Silverman (D), to enter into employment agreements. Each executed the P Agreement. The P Agreement assured continued employment at a guaranteed level of compensation for a period of three years from the date of the merger. For a three-year period commencing on the date of the merger, the agreement prohibited Wilde (D) and Silverman (D) from offering competitive services within a 50-mile radius, soliciting or accepting business from any P client or active prospect, or soliciting any management consulting professional to terminate employment with P. Paragraph 14 of the P agreement states: This instrument contains the entire agreement of the parties with respect to employment following the Merger Date and supersedes all prior oral or written agreements and understandings between and among the Employee [and] the Company … with respect to employment following the Merger Date, except for any agreements or understandings restricting or prohibiting the competition or solicitation activities of the Employee or the use of confidential information of the Company or its clients which shall remain in full force and effect, provided that in the event of a conflict between the provisions of this Agreement and those of any other agreement which survive hereunder, the provisions of this Agreement shall control. P's goal was to make sure that these individuals remained employees for at least three years. That if in the event they left they did not compete with us during that period. Under a 'three-year wasting non-compete' provision Wilde (D) and Silverman (D) would be prohibited from competing with P for a three-year period from the date of the merger, whether or not they were employed by PO. The three-year non-compete provisions were coterminous with an employment and salary guarantee. The P Agreement broadly prohibited competition with P for three years; the 1982 Agreement, which took effect once an employee left P's employ, did not prohibit competition generally but prohibited former employees from interfering with P clients or employees for a one-year period following their employment. Wilde (D) and Silverman (D) testified that they had forgotten about the original 1982 agreements at the time the P Agreements were being negotiated. Wilde (D) and Silverman (D) believed they would be free to compete in three years. P interpreted the P Agreement as follows: The noncompetition agreement ran out … in February of 1993, and the nonsolicitation would run out one year after they terminated employment. Following the merger, morale suffered. A substantial number of former SPA employees became dissatisfied with P and left the company. By late 1992, Wilde (P) and Silverman (P) were the only senior SPA officers still with the merged company. They began to consider seriously their options. A group formed to form a new company. In January 1993, Wilde (D) and Silverman (D) made general inquiries about office space. Wilde (D) began discussing with Dewhurst (D) options for a computer system for a new business. They met with accountants and attorneys. On February 25, 1993, 'DNA Associates, Inc.,' of which Wilde (D) and Silverman (D) were sole stockholders, was incorporated in Virginia. The company's name was later changed to 'Dean & Company Strategy Consultants, Inc.' The parties looked for office space and met with an insurance agent to discuss employee benefit plans and life insurance. On March 5, 1993, Dewhurst (D) resigned from P. On March 21, 1993, Wilde (P) and Silverman (P) signed and caused to be filed an 'S' corporation election form and an application for an employer identification number, both of which stated that Dean & Co. had incorporated on February 25, 1993. On April 2, 1993, Wilde (D) and Silverman (D) resigned, effective immediately. Operations at Dean & Co. commenced on April 5, 1993. All Ds received large bonuses from P in late December 1992 and February 1993. Prior to departing, Wilde (D) and Silverman (D) were highly involved in P's affairs in their roles as members of the Policy Committee, the Board of Directors, and the inside board. Prior to their departure Ds participated in meetings and other work for P clients whom Dean & Co. subsequently solicited. At no time prior to their departure did Ds perform services for a client under the auspices of Dean & Co. In the week prior to their resignations on April 2, 1993, Wilde (D) and Silverman (D) scheduled a dinner with three P employees, to be held the evening of April 2, 1993, at the Ritz Carlton. They admit they intended at the dinner to solicit the employees for employment at Dean & Co. Dewhurst (D) began employment with Dean & Co. in early April 1993. Subsequently, Dean & Co. hired Gregory Lowell, who began work for Dean & Co. on October 25, 1993. Dean & Co. also hired Ware Adams, who began work at Dean & Co. on November 1, 1993. Smist joined Dean & Co. on April 5, 1994. Lowell, Adams, Dewhurst, and Smist were all parties to employment agreements with P. Following their resignations, Wilde (D) and Silverman (D) solicited and performed work for a number of P clients, as did others at Dean & Co. P sued Ds for breach of fiduciary duty, breach of contract, and tortious interference with contractual relationships. The Court previously denied Ds' motion for summary judgment on P's claims relating to breach of fiduciary duty, stating that 'resolution of the question of whether defendants' actions constituted a breach of fiduciary duty . . . requires 'a thoroughgoing examination of the facts and circumstances' presented in this case.'

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