Miller v. Kroger Co.

MEMORANDUM *

The Kroger Company (“Kroger”) seeks reversal of the partial summary judgment entered in favor of Robert G. Miller. We affirm because we conclude that the non-competition clause of the employment agreement is unenforceable under Or.Rev. Stat. § 653.295.

Because the parties are familiar with the facts, we repeat them here only as is necessary to our disposition.

I

Kroger argues that the non-competition clause is enforceable because it satisfies one of the exceptions provided for in Or. Rev.Stat. § 653.295. We review grants of summary judgment de novo to determine whether there exists a genuine issue as to any material fact, viewing the evidence in the light most favorable to the non-moving party. Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1196 (9th Cir.2001). We also review questions of state substantive law de novo, Reese v. Travelers Ins. Co., 129 F.3d 1056, 1059-60 (9th Cir.1997), applying state law principles of statutory interpretation. Lares v. West One Bank, 188 F.3d 1166, 1168 (9th Cir.1999).

Under Oregon law, agreements not to compete in the employment context violate public policy unless they satisfy one of three narrow exceptions. Or.Rev.Stat. §…