Someday, class counsel in the Vivendi securities litigation will get their chance to argue on appeal that billions of dollars in class claims brought by ordinary Vivendi shareholders never should have been thrown out. But in one of his last rulings before leaving the bench for private practice, Manhattan federal district court judge Richard Holwell insured that it ain't gonna happen soon.

If, low on cash, you've ever mailed an intentionally unsigned check to your electric company as a stalling tactic, you have something in common with David Johnson, former head of mergers and acquisitions at IBM. Johnson testified that he intentionally signed IBM's noncompete agreement in the wrong box, so as to give him time to negotiate a more senior position with the company. The issue was never resolved, and when he left for Dell late last year, IBM sued to stop Johnson from joining the rival company. Last Thursday, New York federal district court judge Stephen Robinson denied IBM's request for a preliminary injunction. "Mr. Johnson?s gambit appears to have worked just as he envisioned," the judge wrote.

"The incantation of fraud-by-hindsight will not defeat an allegation of misrepresentations and omissions that were misleading and false at the time they were made," stated Manhattan federal district court judge Robert Sweet in a 398-page ruling.