IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 93-7741 & 93-7784
LDDS COMMUNICATIONS, INC.
and DIAL-NET, INC.,
Plaintiffs-Appellees,
versus
AUTOMATED COMMUNICATIONS, INC.
and JUDY VAN ESSEN,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Mississippi
(October 3, 1994)
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This is an appeal from a preliminary injunction enforcing
covenants not to compete, which are contained in provisions of
contracts for the sale of assets in the market for long distance
and direct dial services. Covenants not to compete can be an
element of purchased assets and are enforceable as a general
proposition, despite hostility toward most such collusive carvings
of markets. At the same time, a sale of assets is not a pass from
the antitrust laws. The key is that such covenants must be
ancillary to the sale, a reasonable protection of what was sold,
goodwill, for example.
The disputed language of two of the covenants is unclear in
meaning at its most critical point, the geographical area in which
competition was not to occur. The district court read the two
covenants as exacting a nationwide cease fire although they were
part of a sale of assets in Arizona and New Mexico. We resolve
their ambiguity in favor of the lesser restraint and are persuaded
that these two covenants not to compete are not fairly read to
reach beyond Arizona and New Mexico. A third covenant not to
compete, part of a sale of assets in Minnesota, did not contain a
geographical limit but excepted from its limits activity of
defendant Judy Van Essen conducted through defendant Automated
Communications, Inc. (ACI). ACI was not a party to that agreement.
Because the parties have not adduced any evidence of activity
inside New Mexico or outside the ACI exception, we vacate the
injunction.
I
LDDS Communications and ACI provide long-distance
telecommunications services throughout the country. In November
1991, ACI agreed to sell various business assets in New Mexico to
LDDS. As part of that deal, ACI and Judy Van Essen, ACI's
president and majority shareholder, entered into noncompetition
covenants with LDDS. The agreements also provided that they were
to be governed by Mississippi law.
In 1993, LDDS through a statutory merger acquired Dial-Net, an
independent South Dakota telecommunications company based in
Minnesota. Van Essen owned 10.8% of the stock in Dial-Net. On
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March 19, 1993, as part of the closing, Van Essen executed a
covenant not to compete with LDDS or Dial-Net. ACI was not
involved in the transaction. The parties appear to have applied
South Dakota law to these covenants not to compete. There is no
suggestion that the laws of South Dakota and Mississippi differ in
ways relevant to our disposition of this appeal.
Meanwhile, in early 1993, Dial-Net employees were concerned
about the upcoming acquisition. ACI representatives, including Van
Essen, contacted Dial-Net employees about joining ACI. By April,
ACI had hired several former Dial-Net employees, including some
sales representatives. Several former Dial-Net clients began using
ACI in subsequent months.
In July 1993, LDDS and Dial-Net sued ACI and Van Essen and
moved for a temporary restraining order and preliminary injunction
to keep ACI and Van Essen from soliciting Dial-Net's employees and
clients. An agreed injunction was entered in August. After a
hearing in September, the district judge signed findings of fact
and conclusions of law prepared by LDDS and decided to continue the
injunction. This appeal followed.
II
The requirements for a preliminary injunction are rote. A
party seeking a preliminary injunction must show (1) a substantial
likelihood of prevailing on the merits; (2) a substantial threat of
irreparable harm if the injunction is not granted; (3) that the
threatened injury outweighs any harm that may result to the
nonmovant from the injunction; and (4) that the injunction will not
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be adverse to the public interest. See, e.g., Roho, Inc. v.
Marquis, 902 F.2d 356, 358 (5th Cir. 1990).
Whether success is likely first depends on whether the
noncompetition covenants barred ACI and Van Essen from soliciting
Dial-Net employees. Three contractual clauses are relevant, all of
which are the fifth paragraphs of the contracts in which they
appear. The first two were executed during the ACI asset purchase
in New Mexico. The one executed by ACI provides that it will not:
directly or indirectly, for a period of three (3) years
following the date hereof, (i) own, manage, operate,
control, be employed or engaged by or otherwise
participate or have any interest in any Person which is
engaged in, or otherwise engaged in, the Business in this
State of New Mexico, or (ii) otherwise solicit, divert,
take away, interfere with or disrupt relationships with,
or attempt to do any of the foregoing with respect to,
any customer, supplier, employee, independent contractor,
agent or representative of LDDS.
Van Essen agreed not to:
(i) own, manage, operate, control, be employed or engaged
by or otherwise participate or have any interest in any
Person which is engaged, or otherwise engaged in, the
Business in the States of Arizona or New Mexico, or (ii)
otherwise solicit, divert, take away, interfere with or
disrupt relationships with, or attempt to do any of the
foregoing with respect to, any customer, supplier,
employee, independent contractor, agent or representative
of LDDS.
In connection with the Dial-Net merger, the agreement Van Essen
signed said that for two years she would not:
(i) own, manage, operate, control, be employed or engaged
by or otherwise participate or have any interest in any
Person which is engaged in, or otherwise engage in, the
Business in any state in the United States in which as of
the date of this Agreement, LDDS or Dial-Net currently
conducts operations, or (ii) otherwise knowingly solicit,
divert, take away, interfere with or disrupt
relationships with, or attempt to do any of the foregoing
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with respect to, any customer, supplier, employee,
independent contractor, agent or representative of LDDS.
1
Our first question is whether the first two covenants bar ACI
and Van Essen from soliciting Dial-Net employees and business. ACI
argues that the geographical limitations in the first clause of
each covenant applies to the second clause. As it reads the
covenants, the first clause operates to keep ACI and Van Essen from
directly competing in certain places, while the second clause
operates to keep them from indirectly competing in those same
places.1 LDDS counters that the first clause contains a
geographical limitation while the second clause does not. It also
argues that imposing a geographic limitation on the second clause
would make it redundant of the first because it is not possible to
steal clients inside a state without doing business within that
state.
ACI's interpretation is more plausible. It argues, quoting
Professor Corbin, that a noncompetition covenant signed at the same
time a business is sold is designed to give the buyer "the
enjoyment of that for which he pays" by keeping the seller from
immediately reacquiring its old customers. See 6A A. Corbin,
Corbin on Contracts § 1385, at 48 (1962); see also Sivley v.
Cramer, 61 So. 653 (Miss. 1913). It makes sense that ACI would
1
In its reply brief, ACI observes that all three provisions
refer only to the solicitation of LDDS employees. The employees
ACI solicited worked for Dial-Net, a wholly-owned subsidiary of
LDDS. This covenant also refers to "agent[s]," however, and the
Dial-Net employees would seem to qualify.
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agree to stay away while LDDS got its new business underway. We
are pointed to no sensible business reason why ACI would contract
away its right to compete with LDDS across the country, just for
the sake of selling some assets in one state. LDDS argues that the
noncompetition covenant "remove[s] any possible temptation that the
seller may have to take advantage of the relationship with its
former employees to obtain information on the purchaser's business
elsewhere," but this argument only justifies a ban on soliciting
former employees rather than one on any solicitation across the
country.
Further, the redundancy LDDS complains about is not
impressive. The first clause can be read as referring to a direct
ownership or control interest, while the second clause refers to
the work of agents, consultants, and other entities in which ACI
would not have an ownership interest.
2
The Dial-Net noncompetition covenant signed by Van Essen does
not have a geographical limit. It is subject, however, to "the ACI
exception," which provides:
6. Certain Exceptions. (a) Notwithstanding any
provisions of this Agreement, individual shall not be
prohibited from: . . . (iii) owning, managing, operating,
controlling, being employed by or engaging in or
otherwise participating or having any interest in
Automated Communications, Inc. or AC America, Inc., each
a Colorado corporation.
ACI argues that this exception allows Van Essen to solicit anyone
she wants to, as long as she does so for ACI.
6
LDDS makes two counterarguments. First, it contends that
paragraph 6 only modifies the first clause of the noncompetition
covenant because the language is similar to that of the first
clause. This claim is belied by the use of the words "any
provisions" at the beginning of this section. It also does not
square with the undisputed fact that Van Essen bargained for the
right to stay with her company, not the abstract right to solicit
business using subcontractors. She had no reason to insist on
language mirroring that of the second clause once she had the right
to stay with her company. As discussed, the second clause refers
to subcontractors while the first clause refers to direct ownership
and action.
LDDS also argues that paragraph 6 is inconsistent with the New
Mexico agreements. Its argument would have force if the New Mexico
agreements barred solicitation of employees nationwide, because it
would not be sensible to allow the company president a power that
the company does not have. Even then, though, the clause would not
be inconsistent; it would just be moot. Van Essen would have the
power to run ACI, but that power would not include the power to
solicit LDDS's business. If the New Mexico agreements do not have
nationwide effect, however, there is no inconsistency. We have
found that they do not reach beyond New Mexico and Arizona.
In sum, paragraph 6 reads as if it was grafted on to an
earlier agreement drafted by LDDS. The agreement just does not
make sense otherwise. Paragraph 5 is drafted to keep Van Essen
insiders out of the industry entirely for two years, yet paragraph
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6 gives Van Essen an exemption to work at a key competitor of Dial-
Net. We construe this inconsistency against LDDS.
IV
We will not write a contract for the parties. We may think
that a contract was unwise or foolish, but that is no business of
the courts. The impracticability of an urged reading becomes
relevant when its level of foolishness and ambiguity creates
uncertainty about what the parties agreed to. Here the hostility
toward restraints of trade takes over, as we insist that the
restraint be tailored to protection of the asset sold. This
tailoring resolves the ambiguity inherent in the contract language
in favor of the lesser and legal restraint, and we enforce the
contract by its terms. This approach cuts in both directions. It
limits LDDS's and Dial-Net's protection but gives it protection for
the lesser area, rather than voiding the entire covenant not to
compete. This resolution of ambiguity is also supported by the
parties' conduct after entering into the contract. See UHS-
Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So. 2d
746, 754 (Miss. 1987). LDDS and Dial-Net did not read the
contracts as they now do until this suit was filed in 1993.
The two noncompetition covenants signed as part of the New
Mexico asset purchase do not prohibit solicitation of LDDS clients
and employees nationwide. The agreement signed by Van Essen does
do so, but contains a sweeping exception that allows her to
continue with ACI. There is no evidence that defendants breached
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any enforceable provision of a noncompetition covenant, and the
district court erred in issuing the injunction. We do not reach
the parties' other contentions.
REVERSED AND REMANDED.
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