United States District Court, E.D. Virginia, Richmond Division
WILLIAM L. TYSON, Plaintiff,
BB&T CORPORATION, Defendant.
E. Payne Senior United States District Judge
matter is before the Court on BB&T CORPORATION'S
MOTION TO DISMISS (ECF No. 7) . For the reasons set forth
below, the motion will be denied.
Complaint (ECF No. 1), William L. Tyson ("Tyson")
alleges a breach of contract in connection with two
restricted stock award agreements ("RSAs") made
between Tyson and the Defendant, BB&T Corporation
("BB&T"). (Compl. ¶ 1). The Complaint
seeks damages, declaratory, and injunctive relief based on
three separate but alternatively pled claims. (Compl.
¶¶ 1, 27, 34). BB&T CORPORATION'S MOTION TO
DISMISS ("Def. Mot.") challenges the legal
sufficiency of Counts II and III of the Complaint, and
requests dismissal of both. (Def. Mot. 1-2) . In evaluating
the Defendant's Motion, the Court accepts as true all
well-pleaded allegations in the Complaint, and views the
facts in the light most favorable to Tyson. Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
alleged in the Complaint, Tyson was employed by BB&T
Securities, a wholly-owned subsidiary of BB&T, as a
Senior Manager of Capital Markets from 1997 until 2016.
(Compl. ¶ 5). Towards the end of his employement, Tyson
and BB&T entered into two "substantially
identical" RSAs. (Compl. ¶ 6). The first RSA was dated
February 24, 2014, and awarded Tyson 981 shares of BB&T
common stock; the second RSA was dated February 24, 2015, and
awarded Tyson 3, 188 shares of BB&T common stock.
Id. The first RSA provided that the stock award
would vest in three equal portions on February 24 of 2015,
2016, and 2017; the second RSA provided that its award would
vest in three equal portions on February 24 of 2016, 2017,
and 2018. Id.
RSAs purportedly provided that, if Tyson were to quit or
resign from his position, the stock awards would continue to
vest pursuant to their original vesting schedule unless Tyson
gained new employment with a "competitor of BB&T or
any of its Affiliates." (Compl. ¶ 8) . The
determination of whether any of Tyson's subsequent
employers constituted a "competitor" was to be made
in the sole and unreviewable discretion of the "Plan
Administrator, " defined as the BB&T Board of
Directors, or, if so designated, the Board's Compensation
Committee. (Compl. ¶ 9). In the event that Tyson's
termination was "involuntary and without cause, "
the RSAs provided that the stock awards would fully and
immediately vest. (Compl. ¶ 7). Tyson alleges his
employment was twice terminated in February Of 2016
"involuntarily and without cause." Id.
alleges that he received notice of termination without cause
on or about December 20, 2015. (Compl. ¶ 10). He further
alleges that he entered into a separation agreement with
BB&T Securities that was fully executed by all parties on
January 25, 2016. That agreement provided that Tyson's
employment would effectively terminate no later than February
5, 2016. (Compl. ¶ 10) . In the agreement and in
exchange for a lump-sum severance payment, Tyson agreed to,
among other things, a "release of all claims related to
his employment with BB&T Securities and the termination
of that employment." Id. Nevertheless, Tyson
alleges that, at the time of his termination, he was
"assured" by BB&T Securities that his RSAs
would be vested in full without any restrictions. (Compl.
¶ 11). At that time, he had received only the first
one-third portion of the stock award set out in the first
about February 16, 2016 (eleven days after the initially
provided "effective termination" date), BB&T
presented Tyson with an amended separation agreement, which
extended his employment to February 29, 2016. (Compl. ¶
12) . Then, on March 1, 2016, Tyson received an offer of
employment by BB&T Scott & Stringfellow, a different
division within BB&T Securities. (Compl. ¶ 13) . As
a condition of accepting the offer, Tyson signed another
document that purported to void the previous separation
agreement, as amended, in its entirety. Id.
Nevertheless, Tyson received the severance called for under
the purportedly voided agreement. Id.
after his employment began with BB&T Scott and
Stringfellow, Tyson became aware that "BB&T had
reneged on its promise to fully vest his shares upon his
involuntary termination, " and had instead vested only
the portions due under the RSAs as if he had remained
continuously employed by BB&T. (Compl. ¶ 14) .
Effective May 1, 2016, Tyson resigned from his employment,
and took a new position with Fifth Third Bank as a Senior
Managing Director. (Compl. ¶ 15).
Tyson alleges that Fifth Third Bank "does not compete
with BB&T Scott & Stringfellow, " BB&T
Securities notified Tyson that he had forfeited the
outstanding portions of the stock awards by joining a
competitor of BB&T Securities. (Compl. ¶ 16-17) .
Tyson alleges that the determination that Fifth Third Bank
was a competitor was made by someone other than the Board of
Directors or Compensation Committee. Id. He also
alleges that, at the time of his original involuntary
termination, the unvested shares promised in the RSAs were
worth in excess of $120, 000.00. (Compl. ¶ 19). In terms
of current market prices, Tyson states that the value of the
wrongfully forfeited stock still exceeds $90, 000.00.
on the facts alleged in the Complaint, Tyson asserts three
alternative claims for relief. Count I seeks in excess of
$100, 000 for breach of contract on the theory that BB&T
was required to fully vest both RSAs when Tyson was
effectively terminated on February 5, 2016, and that
BB&T's obligation was unaffected by the severance
agreements. (Compl. ¶ 23). Count II seeks the same
award, on the alternative theory that BB&T breached the
RSAs when it wrongfully declared the forfeiture of the
outstanding stock awards in response to Tyson's
employment with Fifth Third Bank. (Compl. ¶¶
30-33). Finally, and in the alternative to Counts I and II,
Count III seeks both declaratory and injunctive relief.
(Compl. ¶¶ 34-43). Specifically, it seeks an order
that the provisions of the RSAs restricting employment are
overbroad and unenforceable as against public policy, and, as
an alternative to an award of money damages, an order
granting specific performance of the RSAs-i.e, an order
granting Tyson 2, 453 shares of unrestricted BB&T common
response to these allegations, BB&T CORPORATION'S
MOTION TO DISMISS (ECF No. 7) ("Def. Mot.") seeks
dismissal of Counts II and III under Fed.R.Civ.P. 12(b)(6).
Id. at 1. In its supporting memoranda (ECF No. 8)
(wDef. Memo"), BB&T argues that Tyson has
failed to demonstrate an entitlement to the $100, 000 in
damages alleged in Count II, and otherwise failed to satisfy
the elements required of declaratory judgment actions under
Count III. Id. at 6-9, 9-11. Tyson has filed a
MEMORANDUM IN OPPOSITION TO DEFENDANT'S PARTIAL MOTION TO