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Ally Financial, Inc. v. Gutierrez

Court of Appeals of Texas, Second District, Fort Worth

January 23, 2014

ALLY FINANCIAL, INC. APPELLANT
v.
SANDRA GUTIERREZ AND HOMEWARD RESIDENTIAL APPELLEES

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

MEMORANDUM OPINION [1]

LEE GABRIEL JUSTICE

Appellant Ally Financial, Inc., appeals from the trial court's order granting summary judgment in favor of appellees Sandra Gutierrez and Homeward Residential. We affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).

I. BACKGROUND

A. Gutierrez's Employment At Ally

Ally, which is incorporated in Delaware and headquartered in Michigan, is a "leading vehicle financial services company" and "operates as a bank holding company." Ally also originates and sells mortgages. Gutierrez began working for Ally in 2004 and was an "IT Leader" in Ally's Lewisville, Texas, office. The IT department was responsible for managing personnel and "ensuring work performed adheres to company standards and . . . business requirements." Gutierrez supervised "approximately 89 information technology employees" and evaluated their performance. She was responsible for "all aspects" of the operation of the IT department. Gutierrez had access to personnel records for those employees she supervised and to Ally's strategic and confidential business plans.

In 2008, Ally adopted a "Long-Term Equity Compensation Incentive Plan" (the CIP) under which certain employees would receive award payments "based on Common Stock Value." The CIP's purpose was to "motivate certain employees [of Ally and its subsidiaries] to put forth maximum efforts toward the growth, profitability, and success of [Ally and its subsidiaries] by providing [stock] incentives to such employees." By its explicit terms, the CIP was governed by Michigan law: "The Plan, all Awards granted hereunder, and all actions taken in connection herewith shall be governed by and construed in accordance with the laws of the State of Michigan without reference to principles of conflict of laws, except as superseded by applicable federal law." The CIP also included a non-solicitation covenant:

While the Participant is employed by the Company or a Subsidiary, and during the 2-year period immediately following the date of any termination of the Participant's employment with the Company or a Subsidiary, such Participant shall not at any time, directly or indirectly, whether on behalf of . . . herself or any other person or entity (i) solicit any client and/or customer of the Company or any Subsidiary with respect to a Competitive Activity or (ii) solicit or employ any employee of the Company or any Subsidiary, or any person who was an employee of the Company or any subsidiary during the 60-day period immediately prior to the Participant's termination, for the purpose of causing such employee to terminate his or her employment with the Company or such Subsidiary.

If a CIP participant violated the non-solicitation covenant, the CIP required the participant to repay any award payments under a claw-back provision (the claw-back provision). A participant also could forfeit her rights to unvested awards under the CIP if she voluntarily resigned her employment: "[I]f a Participant's employment is terminated by the Participant prior to a Payment, then the Participant's Unvested Awards shall be immediately forfeited as of the date of such termination of employment" (the automatic-forfeiture provision).

In 2009, Ally was affected by the downturn in the economy and accepted bailout funds from the federal government. Ally had to lay off several IT employees, which "caused genuine concern amongst employees at [the IT department in Lewisville] regarding Ally's financial instability." On March 18, 2009, Gutierrez received her first award letter under the CIP (the 2009 award letter). On April 9, 2009, Gutierrez signed and returned the 2009 award letter to accept the award, which would vest and be paid in four installments over a four-year period:

• 25% on December 31, 2009: [to be paid] within 75 days of [December 31, 2009;]
• 25% on December 31, 2010: [to be paid] within 75 days of [December 31, 2010;]
• 25% on December 31, 2011: [to be paid] within 75 days of [December 31, 2011;]
• 25% on December 31, 2012: [to be paid] within 75 days of [December 31, 2012.]

The 2009 award letter, above Gutierrez's signature line, specified: "I accept and agree to become a participant in the [CIP] and will abide by the terms and conditions of the [CIP] and this award letter." Gutierrez accepted a second award under the CIP on February 24, 2010, under which she would receive three, deferred payments with different vesting and payment dates:

• 1/3rd vests on February [illegible], 2011 and will be paid as soon as practical following February [illegible], 2013;
• 1/3rd vests on February [illegible], 2012 and will be paid as soon as practical following February [illegible], 2013;
• 1/3rd vests on February [illegible], 2013 and will be paid as soon as practical following February [illegible], 2014.

Gutierrez accepted a third award under the CIP on March 7, 2011, which similarly provided for three, deferred payments:

• 1/3rd vests on February 14, 2012 and will be paid as soon as practical following February 14, 2014;
• 1/3rd vests on February 14, 2013 and will be paid as soon as practical following ...

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