Fifth Circuit Addresses Meaning of "Fundamental Policy" In Choice-of-Law Dispute

Choice-of-law clauses are one of the most important procedural frontiers in non-compete disputes.

State law concerning enforceability of covenants not to compete often contains unique twists and turns. Witness Illinois' rather unique rule on consideration in the at-will employment context. Increasingly, choice-of-law clauses are becoming prevalent in non-compete litigation. This paradigm arises because of our increasingly mobile economy where employees work for companies domiciled in other states, the effect of mergers and acquisitions, and corporate counsel's more informed awareness to selecting a particular state's law when drafting contracts in the first place.

I have written many times on the tensions posed by choice-of-law clauses, and generally courts need to assess several questions, including the connection that the chosen state's law has to the litigants. Choice-of-law clauses pose even more difficult questions when the state with the greater interest in the lawsuit has a strong public policy concerning non-competes.

A stark illustration of these choice-of-law rules comes from the recent Fifth Circuit case of Cardoni v. Prosperity Bank. The case involved a very common set of facts that can give rise to choice-of-law disputes. Prosperity Bank in Texas bought an Oklahoma-based bank called F&M, and in connection with that acquisition had key F&M employees sign new employment contracts governed by Texas law. Those contracts contained typical non-competition, non-solicitation, and non-disclosure covenants. Four bankers, who all were Oklahoma residents, then left to compete against Prosperity.

The Fifth Circuit's analysis of the choice-of-law clause focused on the degree to which Oklahoma's public policy was "fundamental" and whether it was sufficient to override the Texas choice-of-law clause. The court described the notion of a "fundamental policy" as an "elusive concept" but made clear to note that it is not one that focuses on assessing potential outcomes of the case. Put another way, courts do not look to whether the difference in state law changes the result at trial. The "fundamental policy" question must strike deeper than that. (This is not the standard in a minority of other states.)

As applied to the bankers' contracts in Cardoni, the court found that Oklahoma's public policy against enforcement of employment non-compete agreements was "fundamental" on account of its state statute. It is fairly safe to assume that a state's enactment of a statute directly concerning non-competes expresses the will of the people or, less colloquially, a "fundamental policy" for purposes of a choice-of-law analysis. Oklahoma, for its part, is one of a handful of states (along with California and North Dakota) that generally ban non-competes.

The court's analysis was different for the bankers' non-solicitation clauses, which the same Oklahoma statute generally permits. The law in Oklahoma is nuanced as to those clauses' permissive scope, but even the narrower limits of enforceability do not implicate a fundamental policy (at least in the Fifth Circuit's eyes). Therefore, in Cardoni, the court reached a somewhat unusual result that Texas law (the chosen law in the contracts) governed the non-solicitation covenants but not the broader non-competition covenants.

The result illustrates the importance counsel must pay to choice-of-law questions when cross-border disputes arise. It is crucial to examine the nature of the contacts the parties have to the competing states, the relationship of those contacts to the actual dispute, and the permutations of the law between the respective states.