facts alleged in Sandler’s complaint, it is at least plausible that the non-compete

provision at issue is enforceable under the rule of reason. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The purpose may be to incentivize sales

efforts by promising the commissioned salesman commissions even if the seller

replaces the salesman with another, which may in appropriate circumstances be

permissible under Ixchel. The district court’s dismissal was therefore premature,

3 and further factual development is required to determine whether the provision

harms competition more than it helps.

Sandler does not challenge the district court’s dismissal of its claim for theft

of trade secrets or the dismissal of its claims for fraudulent and negligent

misrepresentation. These issues are therefore waived. Shivkov v. Artex Risk Sols.,

Inc., 974 F.3d 1051, 1061 (9th Cir. 2020) (citing Smith v. Marsh, 194 F.3d 1045,

1052 (9th Cir. 1999)). However, in light of the district court’s error, Sandler

should be granted leave to amend its complaint and replead the contract-related

claims that the district court dismissed in its November 25, 2019 order dismissing

the first amended complaint. See United States v. Corinthian Colls., 655 F.3d 984,

995–96 (9th Cir. 2011). These claims were not voluntarily dismissed, because

Sandler did not truly have a choice to replead them. See Lacey v. Maricopa Cnty.,

693 F.3d 896, 928 (9th Cir. 2012) (en banc); Vien-Phuong Thi Ho v. ReconTrust

Co., NA, 858 F.3d 568, 577 (9th Cir. 2017). As Masergy conceded below, once the

district court held in its first dismissal order that the non-compete provision was

void, any attempt to replead these claims would have been futile. See id.

AFFIRMED in part, REVERSED in part, and REMANDED.

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