James A. Keener sued his former employer, Convergys Corporation Convergys in a diversity action in the United States District Court for the Southern District of Georgia. Keener sought a declaratory judgment that a nondisclosure and noncompetition agreement he had executed with Convergys was overbroad and unenforceable under Georgia law; an injunction preventing Convergys from enforcing the agreement; and damages for tortious interference with his employment at one of Convergys’ competitors. Convergys counterclaimed for an injunction enforcing the agreement; alternatively, for restitution of the consideration paid to Keener; and for attorney fees. Although the agreement contained a choice of law selection clause declaring that it be governed by the law of the state of Ohio, the district court refused to give effect to that provision on the basis that the application of Ohio law would contravene the public policy of Georgia. Concluding that the agreement is unenforceable under Georgia law, the district court granted Keener’s summary judgment, permanently enjoined Convergys from enforcing the agreement, and dismissed Convergys’ counterclaim. Convergys appealed to the United States Court of Appeals for the Eleventh Circuit, which certified the following question of Georgia law to this Court: “Whether a court applying Georgia conflicts of laws rules must follow the language of Restatement Second Conflict of Law § 187 2 and, therefore, first must ascertain whether Georgia has a ‘materially greater interest’ in applying Georgia law, rather than the contractually selected forum’s law, before it elects to apply Georgia law to invalidate a non-compete agreement as contrary to Georgia public policy.” Because the Restatement Second Conflicts of Law has never been adopted in Georgia, and because we continue to refuse to enforce contractual rights which contravene the policy of Georgia, we answer in the negative.
In 1984 Keener began working for Convergys’ predecessor company Cincinnati Bell Information Systems CBIS, an Ohio corporation, and remained employed with CBIS through its evolvement into what is now Convergys. In 1995 Keener executed the nondisclosure and noncompetition agreement with CBIS as a condition of his continued employment, and he was granted stock options as consideration for the agreement. The agreement contained time, subject matter and geographic restrictions, as follows: Employee agrees for two years following termination of employment for any reason or if this period is unenforceable by law, then for such period as shall be enforceable, not to engage in any business offering services related to the business of the Company at the time of termination in any capacity which requires or utilizes the skill, training or knowledge acquired by Employee while employed by the Company, whether such capacity be as a principal, partner, joint venturer, agent, employee, salesperson, consultant, director or officer, where such position would involve Employee in any business activity in competition with the Company or in any business that provides billing and/or customer care systems to third parties engaged in the communication business including wireless, wireline and cable communication businesses. This restriction will be limited to the geographical area where the Company is doing business as the termination of employment or to such other geographical area as a court shall find reasonably necessary to protect the goodwill and business of the Company. In 2001 Keener voluntarily left Convergys and relocated to Georgia to accept a position with H.O. Systems, a competitor of Convergys, located in Savannah. Later that year, while Keener was making a sales call for H.O. Systems, he happened to cross paths with a Convergys salesperson. That day, Keener received a call from Convergys’ legal department reminding him of the noncompetition agreement. Subsequently, both Keener and H.O. Systems received letters demanding that Keener cease his employment with H.O. Systems. Eventually, Keener and H.O. Systems terminated their employment relationship by mutual agreement.
