Hightower Holding, LLC v. John Gibson ( 2023 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
HIGHTOWER HOLDING, LLC, )
)
Plaintiff, )
)
v. ) C.A. No. 2022-0086-LWW
)
JOHN GIBSON, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: November 9, 2022
Date Decided: February 9, 2023
Daniel C. Herr, LAW OFFICE OF DANIEL C. HERR LLC, Wilmington, Delaware;
Matthew D. Henneman & Scott D. Smith, HENNEMAN RAU KIRKLIN & SMITH
LLP, Houston, Texas; Attorneys for Plaintiff HighTower Holding, LLC
John H. Newcomer, Jr., MORRIS JAMES LLP, Wilmington, Delaware; Andrew P.
Campbell, Todd Campbell & Erin G. Godwin, CAMPBELL PARTNERS, LLC,
Birmingham, Alabama; Attorneys for Defendant John Gibson
WILL, Vice Chancellor
This decision considers plaintiff HighTower Holding, LLC’s request for a
preliminary injunction enjoining defendant John Gibson from breaching covenants
not to compete. Gibson agreed to these covenants when HighTower purchased an
investment advisory business in which Gibson was a partner. If enforced, the
covenants would arguably bar Gibson from managing a hedge fund he launched after
separating from HighTower.
I conclude that HighTower has not carried its burden of demonstrating that it
is likely to succeed after trial on its claims that Gibson breached the non-compete
provisions. Despite the parties’ choice of Delaware law to govern their contracts,
Alabama law—which has a substantially stronger relationship to this dispute than
Delaware—applies. Alabama maintains a legislatively expressed public policy
against broad non-compete provisions (particularly concerning professionals) that
outweighs Delaware’s interest in enforcing contracts. HighTower’s motion for a
preliminary injunction is therefore denied.
I. FACTUAL BACKGROUND
The background is drawn from the plaintiff’s Verified Original Complaint
(the “Complaint”), the record developed in connection with the plaintiff’s motion
1
for a preliminary injunction, and documents subject to judicial notice. Based on the
current record, the following facts are those that I would likely find after trial.1
A. The Protective Agreement and the LLC Agreement
Defendant John Gibson is a licensed financial advisor residing in Alabama.2
In 2012, Gibson was hired as a Financial Analyst at Twickenham Wealth Advisors,
a financial advisory firm in Huntsville, Alabama.3
Around September 2013, Twickenham became an affiliate firm of plaintiff
HighTower Holding, LLC, which provides financial advisory services through
subsidiaries across the United States.4 In January 2019, Gibson and his Twickenham
1
See In re Dollar Thrifty S’holder Litig., 14 A.3d 573, 578 (Del. Ch. 2010);
Braunschweiger v. Am. Home Shield Corp., 1991 WL 3920, at *1 (Del. Ch. Jan. 7, 1991)
(“Because of the tentative nature of factual conclusions reached in a preliminary injunction
proceeding, it is open to the court to further consider factual matters thereafter.” (citing
Univ. of Texas v. Camenisch, 451 U.S. 390, 399 (1981))); In re Books-A-Million, Inc.
S’holders Litig., 2016 WL 5874974, at *1 (Del. Ch. Oct. 10, 2016) (explaining that the
court may take judicial notice of “facts that are not subject to reasonable dispute” (citing
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 170 (Del. 2006))).
Citations in the form of “Pl.’s Opening Br. Ex. __” refer to exhibits to the Plaintiff’s
Opening Brief in Support of its Motion for Preliminary Injunction. Dkt. 28. Citations in
the form of “Def.’s Answering Br. Ex. __” refer to exhibits to the Transmittal Affidavit of
John H. Newcomer, Jr., Esquire in Support of Defendant’s Answering Brief in Opposition
to Plaintiff’s Motion for Preliminary Injunction. Dkt. 30.
2
See Verified Original Compl. (Dkt. 1) (“Compl.”) ¶ 7; Def.’s Answering Br. Ex. 1
(“Gibson Dep.”) 13, 16; Pl.’s Opening Br. Ex. 16 (“Gibson Registration History”);
BrightHaven, https://www.brighthavencapital.com/about (last visited Feb. 8, 2023).
3
Compl. ¶ 10; see Def.’s Answering Br. Ex. 11 (“Berg Dep.”) 97.
4
Compl. ¶ 11; see Hightower Advisors, https://hightoweradvisors.com (last visited Feb. 8,
2023).
2
partners—Henry “Moss” Crosby, Jr., Rob Warren, Jamie Day, Wes Clayton, and
Michael Ahearn (collectively, with Gibson, the “Partners”)—sold a majority interest
in Twickenham to HighTower.5
The sale was made pursuant to a Unit Purchase Agreement and other ancillary
agreements.6 Gibson received more than $600,000 in cash and more than 100,000
HT Holding, LLC units valued at $1.80 per unit.7
In connection with the transaction, each Partner signed a Standard Protective
Agreement (the “Protective Agreement”) containing restrictive covenants.8
Section 5 of the Protective Agreement provides:
During the Restricted Period [ending February 1, 2024],
Principal [Gibson] shall not, directly or indirectly . . . (i)
own any interest in, manage, control, participate in,
consult with or be or become engaged or involved in any
Person engaged in or to engage in the Business within the
United States or any other jurisdiction in which
HighTower or the Partner Firm [HTT Newco] does
business (the “Territory”) . . . or (ii) make any investment
(whether equity, debt or other) in, lend or otherwise
provide any money or assets to, or provide any guaranty
5
Compl. ¶ 12 & n.5; id. ¶ 11. Crosby was a Managing Partner of Twickenham and co-
founded the company with Clayton. Id. ¶ 19 n.12.
6
Id. ¶ 12; Pl.’s Opening Br. Ex. 3 (“Unit Purchase Agreement”); see Pl.’s Opening Br.
Ex. 1 (“Protective Agreement”); Pl.’s Opening Br. Ex. 2 (“LLC Agreement”); Pl.’s
Opening Br. Ex. 4 (“Partnership Services and Affiliation Agreement”); Pl.’s Opening Br.
Ex. 5 (“Contribution and Exchange Agreement (Personal Goodwill)”).
7
Compl. ¶ 14; Unit Purchase Agreement § 1(a), Sched. A; see Gibson Dep. 158-59.
8
Compl. ¶¶ 13, 15-16.
3
or other financial assistance to any Person engaged in or
to engage in the Business in the Territory . . . .9
The Partners, HighTower, and HT Holding also became members in a new
HighTower entity—HTT Newco, LLC.10 HighTower became the majority member
of HTT Newco, and the Partners were designated as principals.11 HTT Newco was
formed to provide certain services—pursuant to a Partnership Services and
Affiliation Agreement—to facilitate HighTower’s operation of the Twickenham
business.12
9
Protective Agreement § 5.
“Business” means “(i) the business of acquiring and/or recruiting investment
advisor firms and/or investment advisors or broker personnel; (ii) the business of providing
services or products relating to investment management or advice and product or services
ancillary thereto; or (iii) any other business that HighTower conducts or operates or takes
material steps toward conducting or operating at any time during the term of the Partner
Arrangements.” Id. § 11(a).
“Restricted Period” means the “period ending on the date that is the later of (i) 24
months immediately following the voluntary or involuntary termination of the Partnership
Arrangements for any reason and (ii) 60 months following the date of the last payment to
or on behalf of Principal under the [Unit Purchase] Agreement.” Id. § 4. The last Unit
Purchase Agreement payment was made to Gibson on February 1, 2019. Compl. ¶ 15 n.7.
Therefore, the restrictions in the Protective Agreement extend to February 1, 2024.
10
Id. ¶ 12.
11
LLC Agreement Sched. A, Art. I. A majority of the principals had the authority to
manage the company subject to certain negative and affirmative covenants based on
HighTower’s prior written consent. Id. § 5.1.
12
Partnership Services and Affiliation Agreement § 3(d). A subsidiary operating company
of HighTower held the employees and assets HighTower purchased from Twickenham.
Id. at Preamble. HTT Newco provided certain services to this operating company and other
affiliates of HighTower. Id. Each Partner also transferred to HTT Newco his goodwill in
the Twickenham business—“all of his personal and ongoing business relationships with
clients and key businesses, as well as [his] experience and reputation . . . that comes from
4
The members of HTT Newco, including Gibson, executed a February 1, 2019
Amended and Restated Limited Liability Company Agreement (the “LLC
Agreement”) that also contained restrictive covenants.13 Section 6.7(c) of the LLC
Agreement provides:
During the Restricted Period [ending July 7, 2025], no
Restricted Member [Gibson] shall, directly or indirectly,
on such Restricted Member’s own behalf or on behalf of
any other Person . . . (i) own any interest in, manage,
control, participate in, consult with or be or become
engaged or involved in any Person engaged in or to engage
in the Business within the United States or any other
jurisdiction in which any Restrictive Covenant
Beneficiary [HighTower or HTT Newco] does business
(the “Territory”) . . . or (ii) make any investment (whether
equity, debt or other) in, lend or otherwise provide any
money or assets to, or provide any guaranty or other
financial assistance to any Person engaged in or to engage
in the Business in the Territory . . . .14
the personal, direct and intimate involvement . . . in interacting with clients and other key
business relations.” Contribution and Exchange Agreement (Personal Goodwill) § 1.
13
Compl. ¶¶ 12, 18.
14
LLC Agreement § 6.7(c).
“Business” means “(i) so long as the Partner Agreements are in effect, the business
of the Company [i.e., HTT Newco] and any Permitted Partner Assignee as contemplated
by the Partnership Services and Affiliation Agreement, and (ii) thereafter, the business of
the Company and any Permitted Partner Assignee providing wealth management,
investment advisory and brokerage services or products relating and ancillary thereto.”
Id. Art. I.
“Restricted Period” means “(i) a period of forty-eight (48) months immediately
following the date that such Restricted Member . . . no longer holds any direct or indirect
interest in the Units as a result of a repurchase of such Units upon a Cause Event pursuant
to the terms of Section 9.4 hereto, or (ii) a period of twenty-four (24) months immediately
following the date that such Restricted Member . . . no longer holds any direct or indirect
interest in the Units for any other reason.” Id. § 6.7(b). As of July 7, 2021, the terms of
5
B. Gibson’s Resignation
On November 30, 2020, Gibson told Crosby of his desire to start a hedge
fund.15 Crosby was concerned about the potential implications for HighTower and
asked Gibson to raise the idea with all of the Partners.16
Gibson met with the Partners on December 9.17 He expressed his intention
to start an “Opportunistic Hedge Fund” that would allow him to deliver favorable
returns to HighTower clients.18 Gibson hoped to run the fund as a separate entity
within HighTower.19 But he indicated that if he were unable to do so, he would leave
HighTower to launch the fund on his own.20
The Partners warned Gibson that opening a hedge fund apart from HighTower
could violate the restrictive covenants in the Protective Agreement and the LLC
Agreement.21 Gibson said that he would wait to launch the fund until the agreements
subsection (i) of the “Business” definition were met. Compl. ¶ 18 & n.11; see infra note
28 and accompanying text (describing Gibson’s resignation and the repurchase of his
interests in HTT Newco). The restrictions in the LLC Agreement therefore extend to July
7, 2025.
15
Compl. ¶ 19.
16
Id. ¶ 20.
17
Id. ¶ 22.
18
Id.
19
Id.; see Def.’s Answering Br. Ex. 9 at 1 (describing the structure of the proposed
venture).
20
Compl. ¶ 22.
21
Id.
6
expired.22 On December 11, HighTower’s Executive Director of Compliance called
Crosby to report that Gibson had asked for guidance on avoiding the restrictive
covenants with HighTower.23
On December 14, the Partners confronted Gibson about his planned course of
action and asked him to reconsider.24 The Partners suggested that they reconvene a
few days later, but Gibson turned over his office keys and laptop.25 On December
16, Gibson tendered a resignation letter and told the Partners that he intended to
adhere to the restrictive covenants.26 Two days after Gibson’s resignation,
HighTower sent Gibson a letter reminding him of his post-employment obligations
under the Protective Agreement and the LLC Agreement.27
In June 2021, the Partners and Gibson reached an agreement for the
repurchase of Gibson’s equity interests in HTT Newco.28
22
Id.
23
Id. ¶ 23.
24
Id. ¶ 25.
25
Id.
26
Id. ¶ 26.
27
Pl.’s Opening Br. Ex. 10.
28
Compl. ¶ 30. In furtherance of the Twickenham sale, Gibson and the other Partners
contributed their HTT Newco units to HTT Holdco, LLC. Id. ¶ 18 n.10. At the time of his
resignation from HighTower, Gibson did not own any interest in HTT Newco except
through his interest in HTT Holdco. Id.
7
C. BrightHaven’s Formation
In March 2020, Gibson formed BrightHaven Capital, LLC under Alabama
law and the fund BrightHaven Alpha, LP under Delaware law.29 In November,
Gibson formed BrightHaven Capital Management, LLC as an Alabama entity.30
On July 26, 2021, Gibson registered BrightHaven Capital Management as an
investment advisor firm with the Securities and Exchange Committee.31 Gibson
registered as an investment advisor representative with BrightHaven Capital
Management the next day.32
On September 8, 2021, BrightHaven Alpha filed a Notice of Exempt Offering
of Securities that listed BrightHaven Capital as its General Partner, BrightHaven
Capital Management as its Investment Manager, and Gibson as the Manager of
29
Pl.’s Opening Br. Ex. 11 (“BrightHaven Capital Certificate of Formation”); Pl.’s
Opening Br. Ex. 12 (“BrightHaven Alpha Entity Details”).
30
Pl.’s Opening Br. Ex. 13 (“BrightHaven Capital Management Certificate of Formation”).
31
Compl. ¶ 31; Pl.’s Opening Br. Ex. 15 (“BrightHaven Capital Management SEC
Registration”).
32
Compl. ¶ 31; see Gibson Registration History.
8
BrightHaven Capital Management.33 BrightHaven Alpha also listed an Alabama
address as its “Principal Place of Business and Contact Information.”34
D. HighTower Loses Clients.
While at HighTower, Gibson managed relationships with about 40 clients.35
He was also responsible for leading Portfolio Allocation and Management for
HighTower’s entire client base, comprised of nearly $1.5 billion in assets under
management.36 HighTower alleges that since Gibson’s resignation, accounts
totaling $3.3 million in assets under management have terminated their relationships
with HighTower.37
E. This Litigation
On January 26, 2022, HighTower filed its Complaint against Gibson. The
Complaint advances seven claims. Only two claims—that Gibson breached the
33
Pl.’s Opening Br. Ex. 17 (“BrightHaven Alpha SEC Registration”).
On January 7, 2022, Gibson’s father, Phillip Gibson, formed BrightHaven Financial
Advisors, LLC under Alabama law and serves as its Chief Executive Officer and Chief
Compliance Officer. Pl.’s Opening Br. Ex. 19; Pl.’s Opening Br. Ex. 20. HighTower
argues that Philip Gibson has acted in concert with John Gibson to compete with its
business. Pl.’s Opening Br. in Supp. of Its Mot. for Prelim. Inj. (Dkt. 28) (“Pl.’s Opening
Br.”) 48-54. These allegations do not appear in the Complaint.
34
See BrightHaven Alpha SEC Registration. This same address was listed as the
“Registered Office Street Address” and “Registered Office Mailing Address” for
BrightHaven Capital and BrightHaven Capital Management. See BrightHaven Capital
Certificate of Formation; BrightHaven Alpha Entity Details.
35
Compl. ¶¶ 10, 33.
36
Id.
37
Id. ¶¶ 27-29, 33.
9
Protective Agreement (Count I) and the LLC Agreement (Count II)—are relevant to
this decision.38
Along with the Complaint, HighTower filed a motion for expedited
proceedings and a motion for a preliminary injunction.39 On June 24, I granted the
motion to expedite and permitted the parties to undertake limited discovery before a
preliminary injunction hearing.40 I heard oral argument on HighTower’s motion for
a preliminary injunction on November 9.41
II. LEGAL ANALYSIS
“A preliminary injunction may be granted where the movant[] demonstrate[s]:
(1) a reasonable probability of success on the merits at a final hearing; (2) an
imminent threat of irreparable injury; and (3) a balance of the equities that tips in
favor of issuance of the requested relief.”42 The three elements are not necessarily
38
Id. ¶¶ 37-44. HighTower also alleges that Gibson engaged in unfair competition (Count
III), breached his duty of loyalty to HighTower (Count IV), tortiously interfered with
HighTower’s business relationships (Count V), and unjustly enriched himself (Count VI).
Id. ¶¶ 45-56. HighTower’s Complaint includes a claim “for preliminary injunction” (Count
VII). Id. ¶¶ 57-63.
39
Dkt. 1.
40
Dkt. 17.
41
Dkts. 35, 36.
42
Cabela’s LLC v. Wellman, 2018 WL 5309954, at *3 (Del. Ch. Oct. 26, 2018) (quoting
Nutzz.com, LLC v. Vertrue Inc., 2005 WL 1653974, at *6 (Del. Ch. July 6, 2005)).
10
given equal weight. “A strong showing on one element may overcome a weak
showing on another element.”43
HighTower’s motion for a preliminary injunction focuses on whether it has a
reasonable probability of succeeding on its claims that Gibson breached the
non-compete provisions in the Protective Agreement and the LLC Agreement.44
HighTower does not need to prove that it will prevail on those claims at trial. Rather,
it need only “show that there is a reasonable probability that it would prevail at a
final hearing on the merits of one or more of these claims.”45
For the reasons discussed below, HighTower has not established a reasonable
probability of success on the merits of these breach of contract claims. Alabama
law, rather than Delaware law, applies. The non-compete provisions are likely void
under Alabama law. And Alabama’s strong interests against enforcing the covenants
outweigh Delaware’s contractarian policies.
43
Cantor Fitzgerald, L.P. v. Cantor, 724 A.2d 571, 579 (Del. Ch. 1998).
44
Pl.’s Opening Br. 38-47. The Protective Agreement and the LLC Agreement also
contain a non-solicitation covenant and confidentiality obligations. HighTower only
addressed its claims for breach of the non-competition covenants in its preliminary
injunction briefing. See Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues
not briefed are deemed waived.”).
45
ZRii, LLC v. Wellness Acq. Grp., Inc., 2009 WL 2998169, at *8 (Del. Ch. Sept. 21, 2009).
11
A. Alabama is the Default State.
Both the Protective Agreement and the LLC Agreement contain Delaware
choice of law provisions.46 Delaware follows the Restatement (Second) of Conflicts
of Laws, which provides that a contractual choice of law will generally control.47
An exception to the Restatement recognizes, however, that the law of the default
state—i.e., that which would apply absent a choice of law provision—will govern in
certain circumstances. The law of the default state will apply if “enforcement of the
covenant would conflict with a ‘fundamental policy’” of the default state’s law, and
the default state “has a materially greater interest in the issues—enforcement (or not)
of the contract at hand—than Delaware.”48
Alabama, having “the most significant relationship to the transaction and the
parties,” is the default state.49 The Protective Agreement and the LLC Agreement
46
Protective Agreement § 12(e); LLC Agreement § 14.9.
47
Ascension Ins. Hldgs., LLC v. Underwood, 2015 WL 356002, at *2 (Del. Ch. Jan. 28,
2015).
48
FP UC Hldgs., LLC v. Hamilton, 2020 WL 1492783, at *8 (Del. Ch. Mar. 27, 2020)
(first quoting Ascension, 2015 WL 356002, at *6-8; and then citing Restatement (Second)
Conflict of Laws (“Restatement”) §§ 187-88 (1971)).
49
Restatement § 188(1). Section 188(2) of the Restatement provides that the “contacts to
be taken into account” in determining the state with the “most significant relationship”
include: “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the
place of performance, (d) the location of the subject matter of the contract, and (e) the
domicil, residence, nationality, place of incorporation and place of business of the parties.”
Id. § 188(2); see also FP UC, 2020 WL 1492783, at *9 (describing overarching principles
that the court may consider in conducting the “most significant relationship” analysis
(citing Restatement § 6)).
12
were negotiated and executed in Alabama.50 The Twickenham business acquired by
HighTower was located in Alabama.51 The relevant agreements were performed in
Alabama.52 The alleged infringement also centers on Alabama given that the
BrightHaven entities (except BrightHaven Alpha) are formed under Alabama law.53
BrightHaven Capital Management is also registered as an investment advisor firm
in Alabama, and Gibson is registered as an investment advisor representative in
Alabama.54 Finally, Gibson has resided in Alabama at all relevant times.55
50
See Def.’s Answering Br. in Opp’n to Pl.’s Mot. for Prelim. Inj. (Dkt. 30) (“Def.’s
Answering Br.”) 18. Because HighTower has not refuted this assertion, I assume its truth
for purposes of my analysis.
51
See Berg Dep. 97.
52
Restatement § 188 cmt. e (explaining that “the state where performance is to occur has
an obvious interest in the question whether this performance would be illegal”); accord FP
UC, 2020 WL 1492783, at *9.
53
See BrightHaven Capital Certificate of Formation; BrightHaven Capital Management
Certificate of Formation; BrightHaven Alpha Entity Details; supra note 33 (describing
BrightHaven Financial Advisors).
54
See BrightHaven Capital Management SEC Registration.
55
See Compl. ¶¶ 7; Gibson Dep. 13. Gibson’s “Alabama domicile at the time of
contracting further supports an inference that the parties anticipated his performance (i.e.,
non-competition) might well occur in that state—meaning his performance was not divided
‘equally’ among multiple states.” FP UC, 2020 WL 1492783, at *9 (quoting Restatement
§ 188 cmt. e); cf. Restatement § 188 cmt. e (“[T]he place of performance can bear little
weight in the choice of the applicable law when . . . performance by a party is to be divided
more or less equally among two or more states.”).
13
Delaware’s ties are limited by comparison. HighTower, HTT Newco, and
BrightHaven Alpha are Delaware entities.56 And the relevant agreements contain
Delaware choice of law provisions.57
The heavy weight of Alabama’s relationship to this matter indicates that its
law would apply absent the parties’ selection of Delaware law. I therefore go on to
consider “whether the enforcement of the covenant[s] would conflict with a
56
See Compl. ¶ 6; LLC Agreement § 2.1; BrightHaven Alpha Entity Details.
57
HighTower cites several cases for the proposition that a Delaware court will enforce a
Delaware choice of law provision so long as there is a “material relationship” to Delaware.
Pl.’s Reply Br. in Supp. of Its Mot. for Prelim. Inj. (Dkt. 32) (“Pl.’s Reply Br.”) 12-13.
According to HighTower, the Delaware choice of law provision and the presence of
Delaware entities constitute “material relationships.” Id. (citing Johnson v. Student
Funding Grp., LLC, 2015 WL 351979, at *2 (Del. Super. Ct. Jan. 26, 2015); Greetham v.
Sogima L-A Manager, LLC, 2008 WL 4767722, at *14 (Del. Ch. Nov. 3, 2008); OmniMax
Int’l v. Dowd, 2019 WL 3545848, at *2 (Del. Super. Ct. July 17, 2019); Abry P’rs V, L.P.
v. F & W Acq. LLC, 891 A.2d 1032, 1047 (Del. Ch. 2006)). These cases are distinguishable
from the present matter.
First, Johnson involved a choice of forum provision rather than one concerning the
choice of substantive law. 2015 WL 351979, at *2. Similarly, neither Greetham nor Abry
involved restrictive covenants. In Greentham, the plaintiff sought to enforce a draft
servicing agreement as a contract or, alternatively, sought damages under a promissory
estoppel theory. 2008 WL 4767722, at *13. In Abry, the plaintiff sought rescission of a
stock purchase agreement—or, alternatively, damages—for fraudulent inducement. 891
A.2d at 1041. Finally, OmniMax held that Delaware law applied because “no other state
has a greater material relationship. The Plaintiff [wa]s headquartered in Georgia, the
Defendant reside[d] in Texas, and the Plaintiff’s work territory encompassed all of North
America.” 2019 WL 3545848, at *2. Here, Alabama is the default state since it has the
most significant relationship to the litigation.
14
‘fundamental policy’” of Alabama.58 If so, I must then assess whether Alabama “has
a materially greater interest in the issues . . . than Delaware.”59
B. The Restrictive Covenants Conflict With Alabama Policy.
“Alabama’s policy against covenants not to compete is a fundamental public
policy.”60 “[I]t is well-settled [that] Alabama law ‘frowns on restrictive
covenants.’”61 The legislature codified this policy in the Code of Alabama, which
provides that “every contract by which anyone is restrained from exercising a lawful
profession” is void, unless one of a few outlined exceptions apply.62 One relevant
exception provides that:
the following contract [is] allowed to preserve a
protectable interest . . . One who sells the good will of a
business may agree with the buyer to refrain from carrying
on or engaging in a similar business and from soliciting
customers of such business within a specified geographic
58
FP UC, 2020 WL 1492783, at *8 (quoting Ascension, 2015 WL 356002, at *6-8).
59
Id.60
Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 507-08 (Ala. 1991) (holding that
“the contractual choice of North Carolina law c[ould not] be given effect and that Alabama
law will govern th[e] agreement”).
61
FP UC, 2020 WL 1492783, at *10 (quoting McGriff Seibels & Williams, Inc. v. Sparks,
2019 WL 4600051, at *13 (N.D. Ala. Sept. 23, 2019)).
62
Ala. Code § 8-1-190(a). Effective January 1, 2016, Section 8-1-190 superseded the
previous version of the statute, which had been codified at Section 8-1-1. The amendment,
however, “preserves the current presumption previously found in Section 8-1-1 of the Code
of Alabama, 1975 against contracts in restraint of trade.” Id. Ala. Cmt.; see also
id. § 8-1-197 Ala. Cmt. (“This section is intended to codify current Alabama case law.”).
Thus, “case law decided prior to January 1, 2016, is still good law for guidance on issues
arising under the new statute.” DJR Assocs., LLC v. Hammonds, 241 F. Supp. 3d 1208,
1225 (N.D. Ala. 2017).
15
area so long as the buyer, or any entity deriving title to the
good will from that business, carries on a like business
therein, subject to reasonable time and place restraints.
Restraints of one year or less are presumed to be
reasonable.63
As part of the Twickenham sale, Gibson executed a Contribution and
Exchange Agreement (Personal Goodwill),64 through which he assigned to HTT
63
Ala. Code § 8-1-190(b)(3).
Section 8-1-190(b)(4) provides:
An agent, servant, or employee of a commercial entity may
agree with such entity to refrain from carrying on or engaging
in a similar business within a specified geographic area so long
as the commercial entity carries on a like business therein,
subject to reasonable restraints of time and place. Restraints of
two years or less are presumed to be reasonable.
That statute likely does not apply here because Gibson resigned from his position
as an employee of HighTower as part of the Twickenham sale. See Partnership Services
and Affiliation Agreement § 1 (“Prior to the Effective Date, each of the Principals [Gibson
and the Partners] has resigned from his or her position as an employee of any HighTower
Party to which he or she was employed.”). Instead, Gibson was a member and principal of
HTT Newco, which provided services to HighTower as an independent contractor. Id. §
11 (providing that HTT Newco, Gibson, and the Partners were independent entities from
HighTower); see supra notes 11-12 and accompanying text (describing HTT Newco’s
role); Berg Dep. 21 (“[T]he principals of Hightower Twickenham are not direct employees
of [HighTower].”). Thus, Gibson was not “[a]n agent, servant, or employee of”
HighTower at the time of execution of the Protective Agreement or the LLC Agreement.
Ala. Code § 8-1-190(b)(4); see Clark Substations, L.L.C. v. Ware, 838 So. 2d 360, 363
(Ala. 2002) (“The employee-employer exception to the voidness of noncompete
agreements does not save a noncompete agreement unless the employee-employer
relationship exists at the time the agreement is executed.”). At oral argument, HighTower
acknowledged that “[t]his is not an employee agreement situation” but rather a “sale of
business scenario.” Oral Arg. Tr. (Dkt. 36) 18, 11-12.
64
Unit Purchase Agreement § 1(a)(iv), Sched. B (providing that “[a]t the Closing,” the
parties were to “execute and deliver” the Protective Agreement and the Contribution and
Exchange Agreement (Personal Goodwill)).
16
Newco “all of his personal and ongoing business relationships with clients and key
businesses, as well as [his] experience and reputation . . . that comes from the
personal, direct and intimate involvement . . . in interacting with clients and other
key business relations.”65 These assigned interests seemingly fall within the
meaning of “good will of a business” under the Alabama statute.66 But additional
considerations lead me to conclude that the restrictive covenants at issue likely run
afoul of Alabama law and public policy.
1. Professional Exemption
First, the statutory exception for the sale of a business “do[es] not apply to
professionals.”67 This exemption—to the exception—flows from Alabama’s
65
Contribution and Exchange Agreement (Personal Goodwill) § 1.
66
See First Alabama Bancshares, Inc. v. McGahey, 355 So. 2d 681, 683 (Ala. 1977)
(holding that an acquisition of a bank included the sale of good will because “[t]he utmost
trust and personal faith is required of a banker by his customers”); Cent. Bank of the S. v.
Beasley, 439 So. 2d 70, 72-73 (Ala. 1983) (same); Kershaw v. Knox Kershaw, Inc., 523
So. 2d 351, 358 (Ala. 1988) (“Where one sells his stock he necessarily disposes of his
interest in the good will of the business conducted by the corporation to the same extent as
he parts with his interest in any other property of the corporation. . . . [Even though] ‘good
will’ was not specified as an asset in the sale, it was ‘incident to and inherent in] the
business itself, and was, therefore, included in the exchange of stock.” (citations omitted)).
67
FP UC, 2020 WL 1492783, at *10 (quoting Benchmark Med. Hldgs., Inc. v. Barnes, 328
F. Supp. 2d 1236, 1243 (M.D. Ala. 2004)); Benchmark, 328 F. Supp. 2d at 1243 (“[T]he
statutory exceptions allowing non-compete agreements in the sale of good will of a
business and in employment contracts do not apply to professionals.”); Friddle v.
Raymond, 575 So. 2d 1038, 1040 (Ala. 1991) (“Although the remaining subsections of
§ 8-1-1 provide for exceptions to the general rule, including an exception for the sale of
the good will of a business, this Court has stated on numerous occasions that a
‘professional’ cannot fall within these statutory exceptions.”).
17
interest in its citizens “being able to receive [professional] services.”68 Alabama
courts have recognized “professional” exemptions for: accountants;69 physicians
specializing in otolaryngology (ear, nose, and throat);70 ophthalmologists;71 physical
therapists;72 and veterinarians.73 By contrast, optometrists,74 orthotists and
prosthetists,75 tax preparation specialists,76 and exterminators77 are not considered
“professionals.”
68
Benchmark, 328 F. Supp. 2d at 1253. The statutory basis for this exemption comes from
the fact that “profession” is included in Section 8-1-190(a)’s general prohibition against
restrictive covenants but excluded from Section 8-1-190(b)’s exceptions. See Thompson
v. Wiik, Reimer & Sweet, 391 So. 2d 1016, 1019 (Ala. 1980) (“Having included
‘profession’ in [Section 8-1-190(a)], and omitted this term in [Section 8-1-190(b)], an
affirmative inference is created that the legislature did not intend to include professions in
[Section 8-1-190(b)], such interpretation being aided by resort to the maxim ‘expressio
unius est exclusio alterius.’” (quoting Odess v. Taylor, 211 So.2d 805, 811 (Ala. 1968))).
69
Gant v. Warr, 240 So. 2d 353, 355-56 (Ala. 1970) (holding that the practice of accounting
by a certified public accountant is a “profession”); Burkett v. Adams, 361 So. 2d 1, 3 (Ala.
1978) (applying Grant in concluding that “public accountants” are “professionals”);
Cherry, 582 So. 2d at 505 (same).
70
Oddess, 211 So. 2d at 811-12.
71
See Salisbury v. Semple, 565 So. 2d 234, 236 (Ala. 1990).
72
Benchmark, 328 F. Supp. 2d at 1250-56.
73
Friddle, 575 So. 2d at 1039-40.
74
See Ala. Bd. of Optometry v. Eagerton, 393 So. 2d 1373, 1378 (Ala. 1981) (analyzing
whether optometry was a “learned profession” for tax purposes).
75
J.E. Hanger, Inc. v. Scussel, 937 F. Supp. 1546, 1557 (N.D. Ala. 1996).
76
See H&R Block E. Enters., Inc. v. Lewis, et al., C.A. No. 1:05cv0801-RBP, slip op. at
21 (N.D. Ala. Jan. 27, 2006).
77
Dobbins v. Getz Exterminators of Ala., Inc., 382 So. 2d 1135, 1137 (Ala. Civ. App.
1980).
18
Alabama courts have not opined on whether an investment advisor like
Gibson is a “professional” for purposes of the exemption.78 One Alabama court
enforced a non-compete against a banker without considering the banker’s
professional status.79 Another observed, in dicta, that “the licensing of securities
brokers does not, in and of itself, compel the conclusion that securities brokers are
engaged in a profession.”80
After reviewing the relevant Alabama case law, however, I believe there is a
meaningful risk that Alabama policy would be offended if the non-competes were
enforced against Gibson. Alabama courts look to several factors in assessing
whether a line of work constitutes a profession: “(1) professional training, skill, and
experience required to perform certain services; (2) the delicate nature of the services
offered; and (3) the ability and need to make instantaneous decisions.”81 These
factors weigh in favor of viewing Gibson as a professional who is exempt from the
sale of business exception.82
78
See G.L.S. & Assocs. v. Rogers, 155 So. 3d 263, 269-70 (Ala. Civ. App. 2014) (declining
to opine, at the motion to dismiss stage, on whether a FINRA-registered securities broker
was a professional).
79
See First Alabama Bancshares, 355 So. 2d at 684.
80
G.L.S., 155 So. 3d at 270.
81
J.E. Hanger, 937 F. Supp. at 1557 (citing Friddle, 575 So. 2d at 1039).
82
I am not holding, as a matter of law, that a hedge fund manager or investment advisor is
necessarily a “professional” who is exempt from the exceptions in the Alabama Code.
19
Gibson is a registered investment advisor who spent years achieving the
various licenses that allow him to serve clients.83 Managing clients’ finances can
certainly be a delicate endeavor and investment decisions may require quick
thinking. Beyond that, investment advisors like Gibson owe fiduciary duties to their
clients.84 Gibson’s position seems considerably closer to an accountant (who is a
“professional” under Alabama law) than a seasonal tax preparer (who is not).85
Furthermore, “the public interest” in having Gibson’s investment advising “services
available to” the public would be impaired if Gibson were barred from continuing
his work at BrightHaven.86
Rather, I conclude that HighTower has failed to demonstrate a reasonable probability of
success on this issue and that public policy considerations appear to favor Gibson.
83
See Gibson Registration History (noting that Gibson holds Series 7, Series 66, and SIE
licenses and is a registered investment advisor representative); Gibson Dep. 16 (same);
BrightHaven, https://www.brighthavencapital.com/about (last visited Feb. 8, 2023)
(indicating Gibson is a “CFA Charterholder”); Ala. Code § 8-6-3(b) (requiring investment
advisors transacting business in Alabama to register with the state).
84
See Benchmark, 328 F. Supp. 2d at 1250-56 (explaining that an individual who provides
“hands-on” services to the public, rather than overseeing others, was a professional against
whom a noncomplete could not be enforced).
85
Compare H&R Block, slip op. at 21-22 (N.D. Ala. Jan. 27, 2006) (stating that the “court
c[ould not] conclude, as a matter of law, that [tax preparers] were professionals” but
holding that the restrictive covenant should not apply because tax preparers held seasonal
positions and “were unskilled and had only a limited relationship with the
client/customers”) with Burkett, 361 So. 2d at 3 (describing “public accountants” as
professionals after discussing the field as a “common calling in the spirit of public service”
that is “incidentally a means of livelihood” (citations omitted)).
86
Benchmark, 328 F. Supp. 2d at 1255; see infra note 103 (noting that a preliminary
injunction would harm Gibson’s clients and investors).
20
2. Unreasonable Restraints
Even if Gibson were not considered a “professional” within the exemption,
HighTower is not likely to succeed on the merits of its claims due to the overbreadth
of the non-compete provisions. Alabama’s public policy against broad restrictive
covenants is evident from its legislation. Section 8-1-190(b)(3) of the Alabama
Code states that non-compete provisions in the sale of the business context must be
“subject to reasonable time and place restraints.”87 The relevant provisions likely
run afoul of that requirement for several reasons.
First, the covenants are broad in duration and geography.
The restrictions in the Protective Agreement and the LLC Agreement both
became effective on February 1, 2019 and expire on February 1, 2024 and July 7,
2025, respectively.88 These five-year limitation periods well exceed the one-year
period presumed to be reasonable under the Alabama Code.89 The United States
87
Ala. Code § 8-1-190(b)(3); see also Picker Int’l, Inc. v. Parten, 935 F.2d 257, 260 (11th
Cir. 1991) (“Alabama courts will enforce a non-compete agreement if it (1) falls within a
statutory exception to the general prohibition, and (2) is reasonably limited as to territory,
duration and subject matter” (quoting Nationwide Mut. Ins. Co. v. Cornutt, 907 F.2d 1085,
1087 (11th Cir. 1990))); Clark v. Liberty Nat. Life Ins. Co., 592 So. 2d 564, 565-66 (Ala.
1992) (“The courts will enforce a covenant not to compete that fits within the exception of
§ 8-1-1(b) only if: ‘1. the employer has a protectable interest; 2. the restriction is reasonably
related to that interest; 3. the restriction is reasonable in time and place; [and] 4. the
restriction imposes no undue hardship [on the employee].’” (quoting DeVoe v. Cheatham,
413 So. 2d 1141, 1142 (Ala. 1982))).
88
Compl. ¶ 15 n.7; id. ¶ 18 n.11; Protective Agreement at Preamble; LLC Agreement at
Preamble.
89
Ala. Code § 8-1-190(b)(3).
21
District Court for the Middle District of Alabama observed that “[a] survey of
Alabama cases strongly suggests that the five year period is at the outer most limits
of what is considered reasonable by the Alabama Courts. The great weight of
authority suggests that, to be reasonable, a non-competition agreement’s time
restraint should be shorter.”90
With respect to geographic scope, the restrictions at issue cover “the United
States or any other jurisdiction in which [HighTower or HTT Newco] does
business.”91 “To secure enforcement of a non-compete clause within a particular
territory, the employer must demonstrate that it continues to engage, in that locale,
in the activity that it seeks to enjoin.”92 But Gibson is only registered as an
investment advisor in Alabama, meaning that he cannot transact business outside of
the state.93
90
Concrete Co. v. Lambert, 510 F. Supp. 2d 570, 583-84 (M.D. Ala. 2007) (citing cases);
see also Mason Corp. v. Kennedy, 244 So. 2d 585, 589-90 (Ala. 1971) (invalidating a
restrictive covenant with a five-year limitations period); Sheffield v. Stoudenmire, 553 So.
2d 125, 126-27 (Ala. 1989) (same); Cajun Steamer Ventures, LLC v. Thompson, 402 F.
Supp. 3d 1328, 1340 (N.D. Ala. 2019) (“[B]ecause only a restraint up to two years is
presumed reasonable [under Section 8-1-190(b)(4)], and because [plaintiff] provided no
allegations or facts why the five-year restraint was reasonable, the court cannot find the
five-year restraint is reasonable in time.”).
91
Protective Agreement § 5; LLC Agreement § 6.7(c).
92
Nationwide, 907 F.2d at 1088.
93
See Gibson Registration History (reflecting registration as an investment advisor only in
Alabama, not in any other states nor with any federal regulator); see also Nobles-Hamilton
v. Thompson, 883 So. 2d 1247, 1251 (Ala. Civ. App. 2003) (noting that a covenant covering
“anywhere” would be unreasonable); Morris-Shea Bridge Co., Inc., v. Cajun Indus., LLC,
22
Finally, HighTower is not reasonably likely to succeed in demonstrating that
the covenants are “reasonably related” to the good will interest it purchased.94 The
covenants broadly restrict Gibson from engaging in the expansively defined
“Business.”95 This restriction seems broader than necessary to protect the good will
2021 WL 4084516, at *5-6 (S.D. Tex. Feb. 22, 2021) (applying Alabama law to invalidate
a restrictive covenant covering all of North America).
HighTower relies on the Alabama Supreme Court’s decision in Kershaw v. Knox
Kershaw, Inc. to argue that a five-year, nationwide restriction is reasonable. There, the
restrictive covenant applied to “any county or province within the United States and
Canada in which [the plaintiff] . . . shall do business at any time during said five (5) year
period.” Kershaw, 523 So. 2d at 359. The court held that the original covenant, which
used the phrase “shall do business,” was unreasonably broad and unenforceable because it
prohibited new and “unidentifiable areas” of business. Id. But it went on to explain that
the non-compete was enforceable for five years “to the extent that it prohibits [defendant]
from leasing the specified equipment in any place in the United States or Canada where
[plaintiff], did business prior to or on” the date the defendant separated from the plaintiff’s
business. Id.I read Kershaw as undermining HighTower’s position. The covenant in the
Protective Agreement restricts Gibson from engaging in “any other business that
HighTower conducts or operates or takes material steps toward conducting or operating at
any time during the term of the [Partnership Services and Affiliation Agreement].”
Protective Agreement § 11(a) (emphasis added); see also LLC Agreement Art. I (defining
“Business” as “(i) so long as the Partner Agreements are in effect, the business of the
Company [i.e., HTT Newco] and any Permitted Partner Assignee as contemplated by the
Partnership Services and Affiliation Agreement, and (ii) thereafter, the business of the
Company and any Permitted Partner Assignee providing wealth management, investment
advisory and brokerage services or products relating and ancillary thereto” (emphasis
added)). Like the invalid covenant in Kershaw, the covenants here contemplate restrictions
in presently “unidentifiable areas” of business, “subject[ing Gibson] to the future decisions
of [HighTower].” Kershaw, 523 So. 2d at 359.
94
See Picker, 935 F.2d at 260; Clark, 592 So. 2d at 565.
95
LLC Agreement § 6.7(c) (prohibiting Gibson from “becom[ing] engaged or involved in
any Person engaged in or to engage in the Business within . . . [the Territory]”); Protective
Agreement § 5 (same). See supra notes 9 & 14 for the definitions of “Business” in the
LLC Agreement and the Protective Agreement.
23
HighTower purchased. For example, the covenants would prohibit Gibson from
developing new client relationships unrelated to those sold to HighTower.96
C. Alabama’s Interests Outweigh Delaware’s Interests.
As discussed above, Alabama has a strong policy opposing the enforcement
of non-competes. Against this is Delaware’s interest in freedom of contract and in
“upholding a lingua franca for sophisticated commercial parties.”97
“The entire purpose of the Restatement analysis is to prevent parties from
contracting around the law of the default state by importing the law of a more
contractarian state, unless that second state also has a compelling interest in
enforcement.”98 Here, Alabama’s interest in preventing the enforcement of
96
Cf. James S. Kemper & Co. Se. v. Cox & Assocs., Inc., 434 So. 2d 1380, 1383-85 (Ala.
1983). In James S. Kemper & Co., plaintiff James S. Kemper & Co. was an insurance
brokerage business engaged in property and casualty insurance. While employed by
Kemper, the defendant had operated in the lumber industry casualty insurance field. The
Alabama Supreme Court upheld a restrictive covenant prohibiting the former employee
from “[i]n any way disturb[ing], or seek[ing] to secure discontinuance of, any insurance
business (of which the [former employee] has secured any knowledge due to [his]
employment by the Company [Kemper], or produced by [him] during the [his]
employment) carried by the company, or its successor or assignee.” Id. at 1383. The court
reasoned that the “restrictions in the covenant reasonably relate[d] to the protection of
Kemper’s interest in a narrow, identifiable group of clients and potential clients, where
Kemper ha[d] a work product investment in those clients with which [the former employee]
was involved.” Id. at 1384. The restriction was “limited to two identifiable groups; the
covenant d[id] not restrict [the former employee] from dealing with non-lumber customers
or even with lumber customers that [we]re not currently customers or quoted prospects of
[the Company].” Id. at 1385 (emphasis added). The covenants here are not so limited to
“narrow, identifiable group[s] of clients and potential clients.”
97
FP UC, 2020 WL 1492783, at *11.
98
Ascension, 2015 WL 356002, at *5; see also FP UC, 2020 WL 1492783, at *11.
24
non-competes against an Alabama resident working in Alabama is more significant
than Delaware’s general contractarian policies. “Alabama’s legislature specifically
addressed the enforceability of non-competes when applied to professionals, and it
acted to protect its citizens’ ability to access professional services.”99 Alabama also
codified a policy against overbroad non-competes.100
The Alabama Code states that Section 8-1-190 “expresses fundamental public
policies of the State of Alabama.”101 It further provides that the Alabama Code shall
“govern and shall be applied instead of any foreign laws that might otherwise be
applicable in those instances when the application of those foreign laws would
violate [Alabama’s] fundamental public polic[ies].”102 To apply Delaware law in
these circumstances would undermine these legislatively expressed interests.
* * *
HighTower has not demonstrated a reasonable likelihood of success on the
merits of its claims for enforcement of the non-competes in the Protective
Agreement and the LLC Agreement. The provisions are likely unenforceable under
99
FP UC, 2020 WL 1492783, at *11; see supra note 68 and accompanying text (describing
the statutory basis for the professional exemption).
100
See supra note 87 and accompanying text (describing the statutory basis for the
reasonableness requirement).
101
Ala. Code § 8-1-197.
102
Id.25
Alabama law. I therefore need not consider whether HighTower has shown a risk
of irreparable harm and a favorable balance of the equities.103
III. CONCLUSION
HighTower’s motion for a preliminary injunction is denied. An appropriate
order will be entered by the court. The parties are to confer on what, if any, further
proceedings are appropriate in this matter and file a joint status update within 30
days of this decision.
103
I note that the balance of the equities appears to favor Gibson. An injunction would
harm not only Gibson but also his clients and investors. Those clients’ funds could be put
at risk if Gibson suddenly ceased operating BrightHaven. See Cantor Fitzgerald, 724 A.2d
at 587 (explaining that the court may “consider the impact an injunction will have on the
public and on innocent third parties”).
26