1 That statute provides:

A. Every contract or agreement, or provision thereof, by which anyone is

restrained from exercising a lawful profession, trade, or business of any kind,

except as provided in this Section, shall be null and void.

C. Any person, including a corporation and the individual shareholders of such

corporation, who is employed as an agent, servant, or employee may agree with

his employer to refrain from carrying on or engaging in a business similar to that of

the employer and/or from soliciting customers of the employer within a specified

parish or parishes, municipality or municipalities, or parts thereof, so long as the

employer carries on a like business therein, not to exceed a period of two years

from termination of employment.

United States Court of Appeals,

Fifth Circuit.

Nos. 93-3566, 93-3664

Summary Calendar.

SMITH, BARNEY, HARRIS UPHAM & CO., INCORPORATED, Plaintiff-Appellee,

v.

Thomas E. ROBINSON, Sr., Defendant-Appellant.

Jan. 31, 1994.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Defendant-Appellant Thomas E. Robinson, Sr. appeals the district court's gra nt of a

preliminary injunction in favor o f Plaintiff-Appellee Smith, Barney, Harris Upham and Co., Inc.

(Smith Barney), and its dismissal of his co unterclaim for a permanent injunction of arbitration

proceedings initiated by Smith Barney against him. This case centers around the enforceability of an

employee's agreement not to solicit other employees of his employer after termination of such

employee's employment, considered in light of La.R.S. 23:921. 1 We find that La.R.S. 23:921 does

not apply to the instant agreement not to solicit employees of the former employer. The Agreement

is also enforceable as written: it suffers neither from failure of consideration nor impermissible

vagueness as to the beginning date of the on e-year period during which Robinson expressly2 No Smith Barney employees thus solicited by Robinson ever resigned from Smith Barney to

join the competitor organization for which Robinson works. contracted to abstain from soliciting Smith Barney's employees. We therefore affirm both the

issuance of the preliminary injunction in favor of Smith Barney and the dismissal of Robinson's

counterclaim.

I

FACTS AND PROCEEDINGS

Robin so n was the branch manager of one of Smith Barney's brokerage offices. One of his

"most important duties," Ro binson asserts, was to recruit experienced brokers. He contracted

annually with Smith Barney in 1991, 1992, and 1993 under three separate but identical agreements,

each of which was entitled "Branch Managers' Incentive Compensation Plan Agreement" (the

Agreement). The 1993 Agreement, like its predecessors, provided that

[i]n consideration of payment of the 1993 Incentive Compensation to me, I agree that should

my employm

ent wit h Smith Barney terminate for any reason and I become employed at a

compet it o r o rganizat ion I will not for a one (1) year period directly or indirectly solicit or

induce any Smith Barney employee to resign from either (a) the Smith Barney branch office

at which I worked; or (b) any other Smith Barney branch office within a fifty (50) mile radius

of the competitor organization's office at which I work, in order for that employee to accept employment at the competitor organization at which I work.

Robinson concedes that during 1993, he left Smith Barney's employ, began to work for a competitor

organization, and, having been advised that the Agreement was unenforceable, knowingly breached

the Agreement not to solicit Smith Barney's employees by actively recruiting those employees. 2

Robinson made this promise in return for a promise from Smith Barney to allow him to

p articipate in the firm's 1993 incentive compensation program. The exact amount of Robinso n's

incentive compensation was to be calculated after Smith Barney's 1993 profits were determined. He

was to receive quarterly advances toward the subject compensation that he would ultimately be paid.

In the event that Robinson were to resign from Smith Barney or that he were to be terminated for

cause during 1993, he would be required to return any advances received in that year. The relevant

provision of the Agreement reads:

I further understand that I will not be entitled to any Incentive Compensation should I resign

from Smith Barney or be terminated for cause prior to the date in 1994 when the 19933 Apparently Robinson left Smith Barney because of an impending decision to demote him from

his position as Branch Manager after a merger took place. Incentive Compensation is paid to Branch Managers. In such instances I agree to promptly

refund to Smith Barney all quarterly advance payments that I may have received.

In April 1993, Robinson received a $7,000 advance, which he did not repay after he voluntarily left

Smith Barney's employ on June 17, 1993. 3 In the face of legal action threatened by Smith Barney,

Robinson demanded that any dispute be arbitrat ed pursuant to the arbi trati on procedures of the

National Association of Securities Dealers, Inc. (NASD).

Smith Barney initiated a New York Stock Exchange Arbitration against Robinson and his new

employer, Mo rgan, Keegan & Co., Inc. (Morgan Keegan), (1) seeking damages for breach of the

non-solicitation provision of the Agreement and ide nt ical provisions in the 1991 and 1992

Agreements, and (2) asking for a permanent injunction to prevent both Robinson's and Morgan

Keegan's solicitation of Smith Barney's employees. On the same day that Smith Barney initiated the

arbitration, it filed suit against Robinson (but not against Morgan Keegan) in district court, asking

for a temporary restraining order (TRO) and preliminary and permanent injunctions against Robinson.

Smith Barney represented that immediate injunc t ive relief was unavailable in the arbitration

proceeding.

Robinson answered and counterclaimed for a permanent injunction prohibiting Smith Barney

from proceeding with the arbitration. The asserted basis for that injunction is central to this dispute:

Robinson claimed that the non-solicitation provision of the Agreement is unenforceable under La.R.S.

23:921, and that the Agreement may not legally be enforced for reasons that are un related to the

statute. Therefore, he asserted, the Agreement may not form the basis of a valid arbitration award

or a permanent injunction by the arbitrators against him. Robinson also moved the court to set the

hearing on his counterclaim at the same time as the hearing on Smith Barney's requested injunctive

relief. The district court denied Robinson's motion to hear both parties' requests for injunctive relief

simultaneously.

Smith Barney withdrew its request for a TRO, and directly pursued a preliminary injunction

against Robinson. At the hearing on Smith Barney's request for a preliminary injunction, Robinson4 Robinson asserts that it could run from at least four different dates, (1) January 1, 1993, (2)

the date of execution of the Agreement, (3) the date of termination of employment, or (4) the date

on which final payment under the Agreement is made to Robinson.

5 Team Environmental Svcs., Inc. v. Addison, 2 F.3d 124, 126 (5th Cir.1993) (citing Concise

Oil & Gas Partnership v. Louisiana Intrastate Gas Corp., 986 F.2d 1463 (5th Cir.1993)). challenged the enforceability of the Agreement on several grounds, specifically contesting its validity

as a non-competition agreement under La.R.S. 23:921(A), its failure und er 23:921(C) to l i st the

specific parishes to which it applies, and its failure under that subsection to describe the part or parts

of Smith Barney' s mult i-faceted businesses from which Robinson is prohibited from soliciting

employees. Robinson also argued that the Agreement is void for two reasons unrelated to the statute,

(1) failure of consideration, and (2) impermissible vagueness regarding the commencement of the

one-year period during which he would be required to refrain from soliciting employees. 4

The district court held that La.R.S. 23:921 did not excuse Robinson's admitted flagrant breach

of the Agreement, and granted Smith Barney's request for a preliminary injunction barring Robinson

from soliciting Smith Barney's employees to work for Morgan Keegan, effective July 28, 1993 (the

date of the hearing), for a period of one year. Robinson appeals the issuance of that injunction.

Smith Barney moved to dismiss, under Federal Rule of Civil Procedure 12(b)(6), Robinson's

counterclaim

fo r permanent injunctive relief, and the district court dismissed the counterclaim.

Robinson also appeals that dismissal order.

II

ANALYSIS

A. Enforceability of Agreement

1. Standard of Review

We review de novo the district court's determination that the Agreement is enforceable under

Louisiana law. 5

2. Applicability of La.R.S. 23:921

Smith Barney argues that La.R.S. 23:921 does not apply to the Agreement, primarily because

the pre-1989 version of that statute did not apply t o agreements not to solicit employees of the6 Martin-Parry Corp. v. New Orleans Fire Detective Svc., 221 La. 677, 60 So.2d 83

(La.1952); John Jay Esthetic Salon, Inc. v. Woods, 377 So.2d 1363, 1366 (La.App. 4th

Cir.1979).

7 Emphasis added.

8 Emphasis added. employer. 6 The earlier version read,

No employer shall require or direct any emplo yee to enter into any contract whereby the

employee agrees not to engage in any competing business for himself, or as an employee of

another, upon the termination of his contract of employment with such employer.... 7

The present version appears on its face to be much broader in its application: it expressly covers

agreements in addition to those between employers and employees, and it prohibits agre ements i n

addition to those not to "engage in any competing business." It now reads,

Every contract or agreement, or provision thereof, by which anyone is restrained from

exercising a law

ful profession, trade, or business of any kind, except as provided in this

Section, shall be null and void. 8

N o case since the 1989 revision of the statute has discussed the applicability of the statut e to

agreements not to solicit employees of the employer.

We agree with Smith Barney that this Agr eement does not possess the attri butes of an

agreement prohibited by La.R.S. 23:921. Contrary to Robinson's assertions, the Agreement does not

restrain Robinson from exercising a lawful profession, trade, or business. As Smith Barney maintains,

the Agreement assumes that Robinson will exercise his profession, presumably even as a branch

manager, with a competitor firm. Robinson is free to recruit stockbrokers or employees for Morgan

Keegan—anywhere, any time, and from any organization—save only tha t small class comprising

Smith Barney's employees, a class which he willingl y agreed not to solicit. The district court

recognized that Robinson was not restrained from exercising a lawful profession, trade, or business

when it issued the preliminary injunction. The Agreement simply does not meet the definition of the

kinds of contracts covered by the statute.

To find that the narrowly tailored Agreement falls within the ambit of the statute, we would

have to conclude not only that recruiting is an indispensable ingredient of Robinson's profession but

also that the Agreement prohibited Robinson from recruiting employees or stockbrokers to work forMorgan Keegan, which it clearly does not do. Smith Barney did not generally restrain Robinson from

recruiting emplo yees for Morgan Keegan. Instead, Smith Barney microscopically focused the

Agreement at that aspect of Robinson's job tha t would be most damaging to Smith

Barney—Robinson's recruitment of Smith Barney's employees to work for a competitor organization.

Contrary to Robinson's hyperbole, that restriction does not prevent him from performing one of his

"primary responsibilities" as a branch manager for a competitor organization, i.e., recruiting

stockbrokers. We note in passing that subsection (C) of La.R.S. 23:921 mentions engaging in a

similar business and soliciting customers but never mentions soliciting fellow employees. We consider

this an implicit legislative recognition that, without more, a narrowly tailored covenant not to solicit

employ ees o f t he employer is not among the kinds of agreements covered by the statute. We

therefore conclude that the Agreement is not governed by La.R.S. 23:921. Having done so, we must

decide only whether the Agreement is otherwise enforceable.

3. Enforceability of the Agreement

Robinson argued that the Agreement is void for two reasons unrelate d to the statute: (1)

failure of consideration, and (2) impermissible vagueness regarding the commencement of the

one-year period during which Robinson is required to refrain from so licit ing employees. Smith

Barney counters that Robinson did receive consideration, and that the Agreement is not ambiguous

as to the commencement date of the one-year period: it began on the date Robinson's employment

was terminated.

First, Robinson argues that the 1993 Incentive Compensation has never been paid and thus

there has been a failure of consideration. Ro binson concedes that the Agreement requires him to

refund the $7,000 advance. Therefore, insists Robinson, as Smith Barney has sought refund of that

advance in the arbitration proceeding, he will have retained no consideration for not soliciting Smith

Barney's employees. We disagree.

Sm it h Barney promised to pay the 1993 Incentive Compensation, preceded by advances

against that amount, if the conditions of the Agreement were met. Robinson stipulated that if he were

called to testify he would testify that he has received all compensation due him under the 1991 and1992 Agreements, and has also received one advance in the amount of $7,000 toward the incentive

compensation provided for in the 1993 Agreement. Robinson also admits that he agreed to—and is

required to—return any quarterly advance payments received in the event that he voluntarily resigned

before payment of the 1993 Incentive Compensation in early 1994. Robinson admits that he has not

returned the $7,000 paid to him by Smith Barney. He cannot now argue that his being required to

perform an unambiguous provision of a contract that he willingly entered—not once, not twice, but

three times—causes a "failure of consideration." The Agreement is not a deed or a promissory note;

it is a bilat eral, commutative contract, the mutual and reciprocal promises of which supply the

consideration for entering into the contract. There is no failure of consideration in this instance.

Second, Robinson asserts that the Agreement is unenforceable as written because it does not

specify the commencement date of the period during which he is barred from soliciting Smith Barney's

employees. Robinson asserts that it could run from at least four different dates: (1) January 1, 1993,

(2) the date of execution of the Agreement, (3) the date of resignation, or (4) the date on which final

payment under the Agreement is made to Robinson. Again, the relevant portion of the Agreement

reads:

I agree that should my employment with Smith Barney terminate for any reason and I become

employed at a

co mpetitor organization I will not for a one (1) year period directly or

indirectly solicit or induce any Smith Barney employee to resign....

The Agreement does not state precisely when the one-year period begins, but we are satisfied

that it may only be interpreted to fix the beginning of the one-year period on the day that Robinson's

employment terminates. Three of the four commencement dates suggested by Robinson suffer from

a defect that would defeat the purpose of Robinson's agreeme nt not to solicit Smith Barney's

employees for the one-year period. If that period began on January 1, 1993, or the date of execution

of the Agreement, or the date on which final payment under the contract is made to Robinson, the

one-year period during which he would not be allowed to solicit Smith Barney's employees to work

for a competitor organization would include time that he spent in the employ of Smith Barney! Smith

Barney seeks by the Agreement to prevent Robinson from soliciting its employees during the time

that it is most vulnerable to employee raiding by Robinson: the one-year period immediately9 Of course, the determination that the commencement date of the one-year period is the date

that Robinson resigned from Smith Barney does not affect the start date of the one-year period,

the effective date of the injunction, July 28, 1993.

10 Barrientos v. Reliance Standard Life Ins. Co., 911 F.2d 1115 (5th Cir.1990), cert. denied,

498 U.S. 1072, 111 S.Ct. 795, 112 L.Ed.2d 857 (1991); FDIC v. Ernst & Young, 967 F.2d 166

(5th Cir.1992).

11 Baton Rouge Bldg. & Construction Trades Council v. Jacobs Constructors, Inc., 804 F.2d

879, 881 (5th Cir.1986).

12 See Tai Ping Ins. Co., Ltd. v. M/V WARSCHAU, 731 F.2d 1141, 1146 (5th Cir.1984);

PaineWebber Inc. v. Hartmann, 921 F.2d 507 (3rd Cir.1990); Nordin v. Nutri/System, Inc., 897

F.2d 339, 344 (8th Cir.1990); Landry v. William B. Reily & Co., 524 So.2d 750, 752-53

(La.App. 3rd Cir.1988).

13 See 9 U.S.C. § 10(a)(4); La.R.S. 9:4210(D); Michaels v. Mariforum Shipping, 624 F.2d

411, 414 (2nd Cir.1980). following the termination of his employment with Smith Barney. Robinson admits that the date of

terminat io n is a po ssible commencement date for that one year, and we find that the date of

termination of employment is that date contemplated by the Agreement. 9

B. Dismissal of Counterclaim

1. Standard of Review

This court also reviews de novo the dismissal of Robinson's counterclaim for failure to state

a claim upon which relief can be granted. 10 A district court's decision to grant a Rule 12(b)(6) motion

may be upheld "only if it appears that no relief could be granted under any set of facts that could be

proved consistent with the allegations." 11

2. Power to Enjoin

The district court cannot interfere with an arbitration proceeding—wi t ho ut abusing its

discretion—if a valid arbitration agreement exists and the specific dispute falls within the substance

and scope of that agreement. 12 The court can then only affect those pro ceedings by vacating,

modifying, or correcting an award after it is rendered. 13

The district court properly dismissed Robinson's counterclaim for a permanent injunction of

the arbitration proceeding for failure to state a claim upon which relief may be granted. Robinson

made no allegation that a valid arbitration agreement does not exist; in fact, he demanded that Smith14 The district court dismissed Robinson's counterclaim as it sought nothing more than to enjoin

an arbitration proceeding for what Robinson anticipates will be a potential erroneous decision. Barney's claim be submitted to arbitration. Under these circumstances, the district court could not

have interfered with an arbitration proceeding, and its dismissa l o f Ro binson's counterclaim was

proper. Even if we were to assume arguendo that a district court could properly enjoin an arbitration

proceeding under these circumstances: As we conclude that the Agreement is enforceable, we would

still affirm the district court's dismissal of Robinson's counterclaim. 14

III

CONCLUSION

For the foregoing reasons, we c o nclude t hat the district court's grant of a preliminary

injunction barring Robinson from soliciting employees of Smith Barney for a period of one year, as

well as its dismissal of Robinson's counterclaim fo r permanent injunctive relief, were proper. The

orders of the district court are in all respects.

AFFIRMED.

* * * * * *