United States District Court, D. Nebraska
TRAVELEX INSURANCE SERVICES, INC., a Delaware Corporation; Plaintiff,
LYNN BARTY, Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
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. §
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.
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.
parties agree to the following facts. 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.
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
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.
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.
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.
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. ...