Travelex Insurance Services, Inc., a Delaware Corporation v. Lynn Barty

United States Court of Appeals
For the Eighth Circuit
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No. 19-2011
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Travelex Insurance Services, Inc., a Delaware Corporation,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Lynn Barty,
lllllllllllllllllllllDefendant - Appellee.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 13, 2020
Filed: August 17, 2020
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Before COLLOTON and BENTON, Circuit Judges, and WILLIAMS,1 District Judge.
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COLLOTON, Circuit Judge.
Travelex Insurance Services, Inc. (Travelex), sued Lynn Barty to enforce an
alleged agreement restricting her ability to compete with Travelex by soliciting
1The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa, sitting by designation.

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business from certain customers. The district court determined that the purported
agreement was unenforceable and granted partial summary judgment for Barty. We
conclude that summary judgment was not warranted, and we therefore reverse and
remand for further proceedings.
Barty began to work as a regional account manager in New York for Travelex
in January 2008. As a condition of employment, Travelex’s parent corporation,
Travelex America, Inc., required employees to sign a confidentiality and non-
solicitation agreement. The non-solicitation agreement provided that employees must
refrain from “directly or indirectly providing or soliciting to provide products or
services,” in competition with Travelex America, to certain customers for one year
after termination of employment. The agreement applied “to any existing customer
or prospective customer of [Travelex America] with whom [the employee] had
personal contact and provided (or participated in a proposal to provide) products or
services during the two-year period prior to termination of employment.”
There is a dispute about whether Barty signed the agreement. Barty denies that
she did so. Travelex asserts that Barty signed the agreement but says that the
document was lost. Travelex’s vice president of human resources, Mary Jo Gray,
testified that she knows there was a signed agreement with Barty, because she faxed
a signed copy to Barty at her request in March 2008.
In 2016, Travelex was acquired by Cover-More Group. After the sale,
Travelex required all employees to sign a revised confidentiality and non-solicitation
agreement as a condition of continued employment. Barty declined to sign the new
agreement, and Travelex terminated her employment for that reason in May 2017.
Barty then began to work for a competitor of Travelex, and Travelex alleges that she
engaged in conduct that violated the 2008 non-solicitation agreement.
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Travelex sued Barty in Nebraska state court, alleging breach of contract and
several other claims. Barty removed the case to federal court and moved for summary
judgment on the breach of contract claim.
The district court granted Barty’s motion. The court determined that whether
or not Barty signed the 2008 agreement, she was entitled to summary judgment. The
court reasoned that any 2008 agreement was nullified because the agreement lacked
mutuality of obligation once Travelex terminated Barty in 2017 for refusing to sign
the new non-solicitation agreement. Travelex then agreed to dismiss its other claims
with prejudice, and it appeals the district court’s order. We review the decision de
novo. Summary judgment is appropriate where a movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a).
The district court assumed for the sake of analysis that Barty signed the 2008
non-solicitation agreement, and we do the same. Although Travelex could not
produce a signed copy, there is a genuine dispute of fact about whether Barty signed
the agreement. Travelex produced an unsigned copy of the standard confidentiality
and non-solicitation agreement bearing Barty’s name. Gray, the vice president of
human resources, testified that she remembered seeing Barty’s signature on a non-
solicitation agreement when she faxed a copy to Barty in March 2008. Gray’s
testimony is corroborated by a March 2008 e-mail from Barty to Gray asking for the
non-compete portion of her employment agreement, and a contemporaneous fax cover
sheet addressed from Gray to Barty with the subject line “Signed NS.” This evidence
is sufficient to support a finding by a reasonable jury that Barty signed the agreement.
Assuming that Barty signed the non-solicitation agreement, we apply New
York law to the remaining issues on appeal. The standard agreement provides that
the agreement will “be interpreted and enforced in accordance with the law of the
State of New York.” R. Doc. 56-10, at 2. The law of the forum state, Nebraska,
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generally gives effect to contractual choice-of-law provisions, DCS Sanitation Mgmt.,
Inc. v. Castillo, 435 F.3d 892, 895 (8th Cir. 2006), and the narrow exceptions to that
rule do not apply. New York has a substantial relationship to the parties, and even
if Nebraska were judged to have a materially greater interest in this particular dispute,
it has no fundamental policy that would contravene the parties’ choice of law. See
id. at 896.
The district court concluded that even if Barty signed the 2008 agreement, it
became “a nullity at the time of the acquisition of Travelex by Cover-More,” because
the “2016 agreement was effectively an offer of continued employment by a different
entity.” The court thought the “mutuality of obligation on which the 2008 covenant
rested—the quid-pro-quo that Travelex would continue to employ the employee if the
employee covenanted not to compete—was destroyed by the employer’s offer of a
new contract of employment, conditioned on different terms.”
We disagree that the Cover-More acquisition and the demand that Barty sign
a new agreement in 2016 nullified the 2008 agreement if it existed. The parties did
not reach a new agreement in 2016, so there was no new contract that could have
superseded a former agreement. That Travelex terminated Barty when she declined
to sign a new non-solicitation agreement did not eliminate the “mutuality of
obligation” on which the 2008 agreement rested. Under the purported 2008
agreement, Barty’s promise not to solicit competitors was exchanged for employment
by Travelex. Under New York law, continued employment for a “substantial period”
of time is sufficient consideration to support a non-compete agreement. See Zellner
v. Stephen D. Conrad, M.D., P.C., 589 N.Y.S.2d 903, 907 (N.Y. App. Div. 1992).
Travelex employed Barty for approximately nine years after she allegedly entered into
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the 2008 agreement, so there was sufficient consideration to bind Barty to her
obligation under the 2008 contract even though she was terminated in 2017.2
Barty argues that we should affirm the judgment on an alternative ground,
namely, that New York law does not allow enforcement of restrictive covenants on
employment when an employee is dismissed without cause. Citing Post v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 397 N.E.2d 358 (N.Y. 1979), Barty argues that
termination without cause “destroys the mutuality of obligation” on which a non-
compete agreement rests. Id. at 361. Post held that where an employer involuntarily
terminated an employee, the firm could not enforce a provision in its pension plan
that allowed the firm to forfeit the employee’s post-employment pension benefits
when the former employee competed with the firm. The court explained that the
employer’s continued willingness to offer employment was an essential aspect of the
pension agreement, so the employer could not involuntarily terminate the employee
and forfeit the pension rights. Such a forfeiture was “unreasonable as a matter of
law.” Id. at 361.
We may assume for the sake of analysis that Travelex terminated Barty without
cause in 2017, although Travelex disputes the point. Even with that assumption, Post
does not establish a per se rule against enforcement of non-solicitation agreements
when an employee is terminated without cause. Hall v. Edgewood Partners Ins. Ctr.,
2The record includes an unsigned copy of a non-solicitation agreement between
Travelex America and Barty. There is testimony that Travelex America was a parent
corporation of Travelex Insurance Services, and that Travelex America later sold the
Travelex Insurance Services division to Cover-More. The unsigned agreement
provides that it will be binding on, and enure to the benefit of, “heirs, representatives,
successors, and assigns” of Travelex America. At oral argument, Barty questioned
whether Travelex could benefit from an agreement between Barty and Travelex
America, but the record is not further developed on the relationship among the
corporate entities, and Barty did not raise this issue in the district court or in her brief
on appeal. We therefore do not address the question at this time.
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Inc., 878 F.3d 524, 529 (6th Cir. 2017). The question here is not whether Travelex
may deprive Barty of previously earned post-employment benefits, as in Post, but
whether it may enforce an agreement forbidding solicitation of customers for one year
after Barty’s termination in exchange for nine years of pre-termination employment.
Assuming that Barty was terminated without cause, the determinative issue
would be whether the non-solicitation agreement is reasonable. The general rule in
New York is that “noncompete clauses in employment contracts are not favored,” but
they will be enforced “to the extent reasonable and necessary to protect valid business
interests.” Morris v. Schroder Capital Mgmt. Int’l, 859 N.E.2d 503, 506 (N.Y. 2006).
New York courts have recognized that agreements limiting a former employee’s
ability to solicit customers that she serviced or contacted on behalf of the former
employer are reasonable methods for an employer to protect its goodwill. See BDO
Seidman v. Hirshberg, 712 N.E.2d 1220, 1225 (N.Y. 1999); Brown & Brown, Inc. v.
Johnson, 34 N.E.3d 357, 362 (N.Y. 2015). Therefore, the purported 2008 non-
solicitation agreement is not unreasonable as a matter of law, and summary judgment
was not warranted based on New York law governing restrictive covenants on
employment.
Barty next suggests that the 2008 agreement is not enforceable under the
Statute of Frauds because it was not in writing and could not be performed within one
year. See N.Y. Gen. Oblig. Law § 5-701. As discussed, however, there is a genuine
dispute of material fact as to whether Barty signed an agreement, so the Statute of
Frauds does not support summary judgment for Barty.
Barty also contends that the 2008 agreement would be unenforceable under
Nebraska law because it is overly broad and unreasonably restricts her post-
employment conduct. Even if we assume that Nebraska law applies, despite the
choice-of-law provision designating New York law, the agreement would not be
unenforceable. The non-solicitation provision is limited to customers with whom
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Barty had personal contact while employed by Travelex, and that sort of restriction
is not unreasonable under Nebraska law. Aon Consulting, Inc. v. Midlands Fin.
Benefits, Inc., 748 N.W.2d 626, 638 (Neb. 2008).
The judgment of the district court is reversed, and the case is remanded for
further proceedings.
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