concurring specially.
I concur specially. As the majority says, to avoid the forum-selection clause in this case, Crump, Duran, Feldhaus, and Yoss were required to show not only that the restrictive covenants violate Georgia law, but also that a Maryland court likely would enforce those covenants. Bunker Hill Intl. v. NationsBuilder Ins. Svcs., 309 Ga. App. 503, 507 (710 SE2d 662) (2011). For the purposes of this appeal, I am willing to assume that the restrictive covenants violate Georgia law, and I also am willing to assume that they would be enforceable under Maryland law. Even assuming these things, Crump, Duran, Feldhaus, and Yoss have failed to show a likelihood that a Maryland court would apply Maryland law to these covenants, and for that reason, they have failed to show that a Maryland court likely would enforce the covenants.4 See Iero v. Mohawk Finishing Products, 243 Ga. App. 670, 672 (534 SE2d 136) (2000) (party failed to show that proceedings in the selected forum, New York, would offend public policy of Georgia where party failed to “even address whether the New York court would apply New York law”).
There is some reason to believe that a Maryland court would apply Georgia law to the restrictive covenants in this case, notwithstanding the contractual choice of Maryland law. Maryland follows Section 187 of the Restatement (Second) of Conflict of Laws, see Jackson v. Pasadena Receivables, 398 Md. 611, 619-620 (921 A2d 799) (2007), which provides that a contractual choice of law may be avoided where
application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which... would be the state of the applicable law in the absence of an effective choice of law by the parties.
Restatement (Second) of Conflict of Laws § 187 (2) (b). In a similar case involving restrictive covenants and Georgia employees, a Maryland court refused to honor the contractual choice of Maryland law *495and instead applied Georgia law, inasmuch as “Georgia had a far greater relationship to the employment contracts and . . . the non-compete agreements violated Georgia’s fundamental public policies.” Hunter Group, Inc. v. Smith, 9 Fed. Appx. 215, 219 (I) (4th Cir. 2001). Moreover, All Risks has sued Duran, Feldhaus, and Yoss in a Maryland federal court for breach of their restrictive covenants, and in that case, the court explicitly has acknowledged the possibility that Georgia law might govern whether the covenants are enforceable, the contractual choice of Maryland law notwithstanding. See All Risks, Ltd. v. Crump Ins. Svcs., Civil Action No. CCB-10-1554, 2011 WL 1304898, *5 (D. Md. Mar. 31, 2011). Crump, Duran, Feldhaus, and Yoss have failed to show that a Maryland court would apply Maryland law to the restrictive covenants at issue, and for this reason, they cannot avoid the forum-selection clause.
Decided March 28, 2012 Reconsideration denied April 12, 2012 Jackson Lewis, Jeffrey A. Schwartz, Robert W. Capobianco, Brandon M. Cordell, for appellants. Elarbee, Thompson, Sapp & Wilson, Douglas H. Duerr, Anthony Ventry III, for appellee.Crump, Duran, Feldhaus, and Yoss note that our opinion in Bunker Hill says nothing about the likelihood that a court in the selected forum would apply the law of some jurisdiction other than Georgia. That is true enough, but perhaps we said nothing about it in Bunker Hill because no one argued that there was any chance that a court in the selected forum would apply Georgia law. We were explicit inBunkerHill that, to avoid a forum-selection clause in a case like this one, a party must show a likelihood that a court in the selected forum would uphold a covenant that is unenforceable under Georgia law. Such a showing necessarily requires a showing that such a court would not, in fact, apply Georgia law.