dissenting.
I would reverse the decision of the district court for the District of Nebraska and affirm the decision of the district court for the Western District of Missouri. I disagree with the majority’s assertion that Hall’s argument “stretches the language of the agreement beyond its breaking point.” See supra at 1024. The fact that two district courts reached two different results suggests that this is a difficult case with no clear outcome. On balance, however, I believe that Hall’s suggested interpretation of the settlement agreement is more plausible than A & A’s.
It is apparent that Hall and A & A intended the agreement to resolve all disputes regarding violations of noncompetition clauses during the two-year period that the agreement was in effect. The term's of the agreement suggest that A & A knew that, despite the noncompetition clauses in their contracts, A & A employees would continue to defect to Hall. The agreement was, therefore, a means for A & A to ensure that it would be compensated for the losses it incurred as a result of these defections. The liquidated damages clause plainly was the exclusive remedy for breach of the agreement. It would be unreasonable for A & A to expect its former employees to pay damages in addition to the 150% liquidated damages that A & A would receive from Hall under the agreement.
If the employees violated state laws in defecting to Hall, then A & A would, of course, have remedy in the courts. Aside from that exception, however, I believe that A & A is limited in these cases to the remedies provided in the settlement agreement. I respectfully dissent.