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Travelex Insurance Services, Inc. v. Barty

United States District Court, D. Nebraska

April 10, 2019

TRAVELEX INSURANCE SERVICES, INC., a Delaware Corporation; Plaintiff,
v.
LYNN BARTY, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge

         This matter is before the Court on defendant Lynn Barty's motion for partial summary judgment, Filing No. 50. This is an action for breach of a confidentiality and non-solicitation agreement, tortious interference with business and contractual relationships, breach of common law duty of loyalty, and violations of the Nebraska Trade Secrets Act, Neb. Rev. Stat. § 87-502(2). The action was originally filed in Nebraska state court and was removed to this Court under 28 U.S.C. § 1441(b). Jurisdiction is premised on diversity of citizenship under 28 U.S.C. § 1332.

         As relevant to this motion, Travelex Insurance Services, Inc. ("Travelex"), alleges that defendant Lynn Barty, its former employee, breached an alleged 2008 Confidentiality and Non-solicitation agreement by becoming employed by a competitor, Arch Insurance Group, Inc. (“Arch”). Barty seeks a summary judgment in her favor on Travelex's breach-of-nonsolicitation claim. She contends that she never signed the agreement. She argues that the agreement is void under the statute of frauds, that Travelex cannot show mutual assent to the agreement, and the agreement is unenforceable under both Nebraska and New York law.

         In response, Travelex argues there are genuine issues of material fact as to whether an enforceable non-solicitation agreement exists. Travelex maintains that Barty signed the agreement and accepted an offer of employment that was contingent on signing the agreement, though it concedes that it does not possess a signed copy of the agreement.

         I. FACTS

         The parties agree to the following facts.[1] Travelex is a corporation that provides travel insurance products and services. It is organized and exists pursuant to the laws of Delaware with its principal business in Omaha, Nebraska. The record shows Barty first worked for Travelex as Vice President of Finance for Travelex Americas in New York in 1998. Filing No. 52-9, Barty Dep. at 12. At that time, Travelex Americas was the parent company and it owned subsidiaries, including Travelex Insurance Services. Id. at 12-13.

         In 2007, Barty was hired as a contract worker with Travelex Insurance Services and she continued to work in New York in that position. Id. at 41. Barty signed a Confidentiality Agreement in connection with her employment as a contract worker. Filing No. 52-4, Ex. 16, Confidentiality Agreement dated August 2, 2007 (“2007 Confidentiality Agreement”); Filing No. 52-8, Ex. 36, Deposition of Mary Jo Gray (“Gray Dep.”) at 55-56; Filing No. 52-7, Ex. 35, Rule 30(b)(6) Deposition of Michael Ambrose (“Ambrose Dep.”) at 15. The 2007 Confidentiality Agreement had no non-solicitation or noncompete clause and the agreement was governed by Nebraska law. Filing No. 52-4, Ex. 16, 2007 Confidentiality Agreement at 2.

         In January 2008, Barty was hired by Travelex as a full-time, permanent employee in the position of a Regional Account Manager in New York. Filing No. 56-2, Ex. B, Barty Dep. at 52-53. She resided at all times during her employment in New York but traveled to Nebraska two or more times per year. Id. at 15-16; Filing No. 56-12, Ex. D, Gray Dep. at 44. In connection with her hiring, Travelex presented Barty with employment documents in January 2008. See Filing No. 56-5, Ex. B(3), 2008 Offer Letter; Filing No. 56-9, Ex. C(1) (same); Filing No. 56-10, Ex. C(2), Confidentiality and Non-Solicitation Agreement (“the 2008 Non-Solicitation Agreement”). The 2008 Non-Solicitation Agreement forms the basis of Travelex's breach of contract claim. Filing No. 1-1, Complaint at 4-5.

         That agreement, assuming it was signed, would restrict Barty from competing with Travelex for one year following the termination of her Travelex employment. Filing No. 56-10, Ex. C(2), 2008 Non-Solicitation Agreement at 1-2. In particular, the 2008 Agreement provides:

For a period of one year following the termination of employment with [Travelex] for any reason whatsoever, [Barty] shall refrain from directly or indirectly providing or soliciting to provide products or services which compete with those provided by [Travelex] to any existing or prospective customer of [Travelex] with whom [Barty] 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. For purposes of this Agreement, “existing customer” shall mean any person or entity that has purchased Employer's products or utilized its services during the two-year period preceding termination of employment with Employer and “prospective customer” shall mean any person or entity which had been solicited by Employer during the two-year period preceding termination of employment.

Id. It would also restrict Barty from disclosing “Confidential Information” (as defined in the agreement) indefinitely and without a time limitation. Id. at 1. The 2008 Agreement contains a New York law choice of law provision. Id.

         Travelex's personnel file contains a number of documents with Barty's signature, but there is no signed original or copy of the agreement at issue. Filing No. 52-3, Ex. 13, Response to Request No. 1. Travelex admits that it does not possess any such signed agreement. Id.; see alsoFiling No. 52-8, Ex. 36, Gray Dep. at 71; Filing No. 52-7, Ex. 35, Rule 30(b)(6) Deposition of Michael Ambrose at 14. Travelex Human Resources Manager Mary Jo Gray testified that she had seen a signed copy of the 2008 agreement. Filing No. 52-8, Ex. 36, Gray Dep. at 71. Barty unequivocally denies ever signing, or agreeing to the terms of, the agreement. Filing No. 56-2, Ex. B, Barty Dep. at 106 and 133.

         In 2016, Travelex was sold to another entity, Cover-More Group. Id. at 106-07, 109; Filing No. 56-12, Ex. D, Gray Dep. at 94-95. In its disclosure of corporate affiliations, Travelex identifies Cover-More Holdings USA, Inc./Cover-More, Inc. as its parent corporation. Filing No. 7, Corporate Disclosure Statement. As a result of the sale, all Travelex employees were required to sign “updated” employment agreements along with “updated” confidentiality and non-solicitation agreements. Filing No. 56-12, Ex. D, Gray Dep. at 94-95; seeFiling No. 56-7, Ex. B(5), Offer Letter and Confidentiality and Non-Solicitation Agreement dated 11/15/2016; see also Filing No. ...


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