De Facto New Employment Relationship Precludes Restrictive Covenant Enforcement By Successor Employer
Kelly Services, Inc. v. Savic, 2006 U.S. Dist. LEXIS 83930
Ms. Anna Savic worked as a legal recruiter at The Wallace Law Registry and its successor companies from February 1989 until her resignation on June 20, 2005. She began her employment primarily recruiting and placing paralegals in the Connecticut legal market. Ms. Savic executed an employment agreement with Ms. Shelly Wallace, the owner and sole shareholder of the company, on October 2, 1990. The agreement detailed the employment relationship between Ms. Savic and the company, specifically stating that employment was at-will where either party could terminate the relationship at any time with or without cause (paragraph #3), that all the company’s information and records were private/privileged/confidential (paragraph #8), that she was prohibited from soliciting any applicant or client without express written consent for two years following termination (paragraph #9), and that she was prohibited from soliciting any employees to leave the employ of the company for two years following termination (paragraph #11).
The Wallace Law Registry experienced a series of mergers and acquisitions during Ms. Savic’s employment and the company eventually became part of Kelly Services, Inc., a Delaware corporation with headquarters in Troy, Michigan. Ms. Savic’s duties and responsibilities significantly changed around March 2000 and she received a new compensation schedule despite the fact that no new employment agreement was executed. Kelly Services commenced an action to enforce the provisions of the 1990 Employment Agreement when Ms. Savic resigned from the company in 2005. Ms. Savic asserted that the contractual obligations of the 1990 Employment Agreement were no longer in effect and that the agreement itself was not assignable during the series of mergers and acquisitions that occurred throughout her employment.
The central issues for the court were: (1) whether the 1990 Employment Agreement between Ms. Savic and The Wallace Law Registry was enforceable to Kelly Services because it lacked an assignment clause, and (2) if the agreement was assignable, whether it was enforceable. While the 1990 agreement was silent on the assignability and/or successorship of the contractual provisions, Connecticut law and policy nonetheless enshrine the principle that employment contracts are assignable business assets. Specifically, “Connecticut adheres to the view, rejected by most jurisdictions, that an employee’s covenant not to compete is an assignable asset of the employer”. Madrigal Audio Laboratories, Inc. v. Cello, Ltd., 799 F.2d 814, 821 (2d Cir. 1986). The court determined that the 1900 agreement was assignable but ultimately concluded that it was not enforceable by Kelly Services.
In order to be successful in requesting enforcement of a non-compete agreement, a plaintiff must demonstrate (1) irreparable harm and (2) either (a) the likelihood of success on the merits or (b) sufficiently serious questions on the merits to make them fair ground for litigation. The court held that that Kelly Services failed to establish a likelihood of success on the merits of the case. The changes in employment/responsibilities in March 2000 went beyond mere modifications to the original employment agreement and the court concluded that a new employment relationship was created even though it was not formally detailed in a new employment agreement. This, accordingly to the court, rendered the 1990 Employment Agreement between Ms. Savic and The Wallace Law Registry unenforceable and no longer in effect.
This case is one that demonstrates that there are exceptions to every rule. Despite the general policy in Connecticut of assigning employment contracts in the event of a merger or acquisition, there are always certain circumstances where the original agreement will not be enforceable by the successor employer. An employer is prevented from enforcing an original employment agreement when a de facto new employment relationship is created due to significant changes in responsibilities, compensation, and/or position within the company.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.
De Facto New Employment Relationship Precludes Restrictive Covenant Enforcement By Successor Employer
Fourth Circuit Confirms District Court Decision that FINRA Arbitration Panel is Not Bound to Apply State Procedural Law
Wachovia Securities, LLC, v. Frank J. Brand, et al, 671 F.3d 472 (4th Cir. 2012)
In a recent case before the Fourth Circuit, Wachovia Securities, LLC (“Wachovia”) appealed a decision by the U.S. District Court for the District of South Carolina in which the court denied Wachovia’s motion to vacate a Financial Industry Regulatory Authority (“FINRA”) arbitration award that denied the firm’s claims in the arbitration of an employment dispute with Frank Brand and three other former employees (“the former employees”). The Fourth Circuit affirmed the district court’s ruling that denied vacatur and confirmed the arbitration award.
The underlying dispute in this case began when Wachovia filed a Statement of Claim with FINRA against four former employees alleging that the former employees had violated contractual and common law obligations. The former employees were employed as individual financial advisors by A.G. Edwards & Sons, Inc. until its merger with Wachovia in October 2007. After the merger, the former employees were employed by Wachovia until their termination in June 2008. All four former employees later found employment with a competing brokerage firm in the same geographic area. Wachovia alleged that the former employees had conspired with the competing brokerage firm to open an office in the area, that they had misappropriated confidential and proprietary information, and that they were soliciting current Wachovia clients and employees to join the new firm.
In its Statement of Claims, Wachovia requested a permanent injunction, the return of records and attorneys’ fees associated with the arbitration. In their answer, the former employees described the dispute as “meritless” and requested the arbitration panel award them attorneys’ fees and costs incurred in defending themselves. FINRA appointed a panel of three arbitrators to hear the matter, and requested that the parties submit proposals regarding requested attorneys’ fees and other costs during the final two days of hearings. Wachovia was unprepared to submit its brief on the penultimate date of hearings and requested a one-day extension, which the arbitration panel granted. On the last day of arbitration hearings, both parties submitted their briefs, each of which contained new arguments. Wachovia argued that, under the South Carolina Arbitration Act, neither party was entitled to attorneys’ fees. The former employees argued that they were entitled to attorneys’ fees under the Frivolous Civil Proceeding Act (“FCPA”), codified at S.C. Code Ann. § 15-36-10. In South Carolina, the FCPA provides both a mechanism for litigants to seek sanctions against attorneys filing frivolous claims and safeguards for attorneys facing such sanctions. These safeguards include a notice period affording the accused 30 days to respond to a request for FCPA sanctions and a separate hearing on sanctions after the verdict. Wachovia expressed its concern that it was not being afforded either of these procedural safeguards. The arbitration panel neither held additional hearings nor requested additional briefings. On December 18, 2009, the FINRA panel entered an award in favor of the former employees, awarding them $1.1 million for attorneys’ fees and costs under the FCPA only and denying all of Wachovia’s claims.
Following arbitration, the former employees filed a motion in federal court to confirm the arbitration award pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 9. Wachovia filed its own motion to vacate the portion of the arbitration award granting relief to the former employees. Wachovia contended that the arbitration panel exceeded its authority and manifestly disregarded the law in violation of the FAA, 9 U.S.C. § 10(a)(4) and that the arbitration panel also deprived Wachovia of a fundamentally fair hearing in violation of FAA, 9 U.S.C. § 10(a)(3). The district court considered these claims in turn and rejected both claims. Wachovia appealed the district court’s holding that the arbitrators neither deprived Wachovia a fundamentally fair hearing nor manifestly disregarded the law.
In general, judicial review of an arbitration award in federal court is severely circumscribed, 9 U.S.C. § 9-11. When the district court denies vacatur of an arbitration award, the appellate court reviews the district court’s legal findings de novo and reviews the district court’s factual findings for clear error.
Vacating an arbitration award on the basis of FAA §10(a)(3) requires the court to find “the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.” “Misconduct” and “misbehavior” are different from “mistake” in this context. The first two imply that the arbitrators intentionally contradicted the law. Mistakes lack the requisite intentionality to fall within FAA § 10(a)(3). Wachovia did not allege that the FINRA arbitration panel acted with an intention to contradict the law, only that the arbitrators made a mistake in handling the former employees’ FCPA claim. Because Wachovia did not allege intentional misconduct, § 10(a)(3) cannot be grounds for vacatur. Furthermore, the appellate court did not find that the arbitration panel made a mistake in not following the procedural safeguards of the FCPA. A recent U.S. Supreme Court case held that the FAA pre-empted state law. See AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). Although parties may consent to particular arbitration procedures in advance, it is inconsistent with the FAA for one party to demand particular state law procedural requirements after the fact. Id. at 1750. Therefore, the FINRA arbitration panel was not compelled to follow FCPA procedural mandates and their failure to do so does not satisfy the requirements of § 10(a)(3).
The Fourth Circuit adopted the position that manifest disregard continues to exist either as an independent grounds for judicial review of arbitration awards or as a judicial gloss on arbitration awards. A court may vacate an arbitration award for manifest disregard of the law if: (1) the applicable legal principle is clearly defined and not subject to reasonable debate; and (2) the arbitrator refused to heed that legal principle. Long John Silver’s Rests., Inc. v. Cole, 514 F.3d 345, 349 (4th Cir. 2008). In this case, the appellate court found that whether the Panel erred by not applying the FCPA’s procedural requirements was a question that was itself not clearly defined and was certainly subject to debate. Therefore, the court held that the arbitrators did not manifestly disregard the law when they awarded the former employees $1.1 million in attorneys’ fees and costs under the FCPA.
The appellate court affirmed the decision of the district court denying Wachovia vacatur of the FINRA arbitration award.
Should you have any questions relating to FINRA, arbitration or employment issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.
Court Uses Connecticut Law to Supersede Massachusetts Law in Application of Non-Compete Agreement
Custard Insurance Adjusters v. Nardi, 2000 Conn. Super. LEXIS 1003
Mr. Robert Nardi worked at Allied Adjustment Services’ Orange, CT office beginning in September 1982 as the vice president of marketing, overseeing the adjustment of claims for insurance companies and self-insurers. The company had Mr. Nardi sign non-compete and confidentiality agreements as a term of his employment. The agreements established that he could not solicit or accept claims within a fifty-mile radius of Allied’s Orange office for a period of two years following his termination. The agreements further specified that the names and contact information of Allied’s clients were the company’s confidential property. The choice of law provision stated that Massachusetts law would be controlling (Allied had its headquarters in Massachusetts). On September 1, 1997, Allied sold its business and all its assets, including its non-compete agreements, to Custard Insurance Adjusters. Mr. Nardi became increasingly worried about future employment at Custard when the company restructured its compensation format, allegedly decreasing his annual income by 25%. At this point Mr. Nardi began to inquire about employment at other companies and in particular contacted Mr. John Markle, the president of Mark Adjustment, with whom he had a previous professional history. He also arranged meetings between Mr. Markle and four other current Custard employees to discuss switching companies. While the companies are competitors in the insurance industry, Mark’s business was restricted to the New England region while Custard operated nationally. Custard terminated Mr. Nardi and asked the court to enforce the non-compete agreement.
The court first sought to tackle the issue of the choice of law provision since it designated Massachusetts law as controlling but this lawsuit was brought in Connecticut state court. The court asserted its authority over the issue and case because it could not ascertain any “difference between the courts of Connecticut and Massachusetts in their interpretation of the common law tort breach of fiduciary obligation brought against a former officer of a corporation”. The court emphasized that above all else, the legal issue at hand was that of contractual obligations and a company’s business operations. It asserted its authority in this respect by stating it believed “that the Massachusetts courts interpret the tort of tortuous interference with contractual and business relationships the same way our [Connecticut’s] courts do”. Additionally the court cited that the application of Massachusetts law would undermine Connecticut’s policy to afford legal effect to the Connecticut Unfair Trade Practices Act (CUTPA) and Connecticut Uniform Trade Secrets Act (CUTSA), two state statutes used by Custard to sue Mr. Nardi.
Next, the court addressed the enforceability of the non-compete agreement signed by Mr. Nardi and Allied. Mr. Nardi contended that the provisions of the agreement were only binding upon the signatory parties (himself and Allied) and that Custard lacked the authority to enforce its provisions. He asked the court to deny Custard’s request to enforce the non-compete because it was “based on trust and confidence” between the signatory parties and “was thus not assignable”. The court rejected this train of thought because the non-compete explicitly contained an assignability clause and it held that the non-compete covenant was properly and legally transferred to Custard under Massachusetts law.
Mr. Nardi based a substantial portion of his defense on the claim that Custard violated, and therefore invalidated, the agreement when it modified his compensation format. He alleged that he was the victim of unjustified reductions in his professional responsibilities and compensation following Custard’s acquisition of Allied in 1997. Mr. Nardi however was still an executive at the new company despite a reduction in rank and he himself had expressed excitement about becoming an executive at a national, instead of a regional, company.
The court ultimately found the non-compete to be valid and enforceable, therefore granting Custard’s request for injunctive relief. It assessed the facts of the case and Mr. Nardi’s current position to amend the time restriction of the agreement however. Taking into account that he was starting a family and had a young child in conjunction with estimates that the full restrictions could amount to a 60-70% loss of business for Mr. Nardi, the court reduced the time limitation from two years to six months. The court concluded that while the provisions were reasonable at face value, they could have unforeseen consequences that would have severely impaired Mr. Nardi’s ability to make a living in order to provide for his family.