Carson v. Obor Holding Co. LLC

The trial court erred in finding an operating agreement's forum selection clause enforceable, as its enforcement would likely result in a violation of Georgia's then-existing public policy.

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Alan Carson is a member of Obor Holding Co., LLC, and a former employee of its wholly-owned subsidiary, Obor Digital, LLC. After Obor Digital significantly reduced his compensation, Carson claimed he had been constructively discharged from Obor Digital, resigned from the Management Committee of Obor Holding, and filed suit against Obor Holding, seeking to enjoin it from enforcing against him the restrictive covenants contained in the current Obor Holding Operating Agreement. Obor Holding moved to dismiss Carson’s complaint based upon the forum selection clause contained in the Operating Agreement, which provides that any disputes arising out of the Operating Agreement will be litigated in Florida. Carson opposed the motion to dismiss, arguing that the trial court should find the forum selection clause unenforceable because allowing a Florida court to decide the enforceability of the non-compete agreements would violate of Georgia’s public policy, as that policy existed at the time he executed the Operating Agreement.1 In support of this claim, Carson pointed to the fact that the forum selection clause also contained a choice of law provision requiring the application of Florida law to any disputes between the parties. The court below granted the motion to dismiss and Carson now appeals from that order. Finding that the trial court erred when it found the Operating Agreement’s forum selection clause enforceable in this case, we reverse.

When an appeal is taken from a dismissal based upon a contractual forum-selection clause, we owe no deference to the decision of the court below, and our review is de novo. The Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795 692 SE2d 61 2010.

Carson v. Obor Holding Co. LLC

The trial court erred in finding an operating agreement's forum selection clause enforceable, as its enforcement would likely result in a violation of Georgia's then-existing public policy.

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