3D/International, et al v. Romano

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20620

3D/INTERNATIONAL, INCORPORATED; PARSONS INTERNATIONAL
LIMITED; PARSONS INGENIERIA, S. DE R.L. DE C.V.,

Plaintiffs–Appellants

v.

JOSEPH F. ROMANO,

Defendant–Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-2432

Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit
Judges.
PER CURIAM:*
Joseph Romano sued his (former) U.S.-based employer, Parsons, in
Mexican labor court for reinstatement of his employment or, in the alternative,
severance benefits under Mexican labor law.
1
However, Romano had signed a
contract waiving his right to do just that. So, in turn, Parsons sued Romano in

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
1
“Parsons” generally refers to Parsons Corporation, Parsons International Limited,
Parsons Ingenieria, S. DE R.L. DE C.V., and 3D/International, Inc. (“3DI,” individually).
United States Court of Appeals
Fifth Circuit
FILED
April 29, 2020

Lyle W. Cayce
Clerk
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the United States for breach of contract. The district court granted summary
judgment in favor of Romano, finding that the parties never had an enforceable
contract. We disagree with the district court’s determination and, therefore,
reverse.
I
Parsons is a U.S. corporation that manages various construction projects
throughout the world. And in 2014, Romano—an experienced architect—
applied for a position with the company to help design a new airport in Mexico
City. After engaging in negotiations over employment terms and benefits,
Parsons contingently offered Romano a position as Senior Design Manager for
the Mexico City project. Romano’s offer letter noted an expected start day of
January 12, 2015 and explained that he would be based in Mexico City. The
offer letter further provided that Romano’s “salary [would] be paid in US
dollars by a US Parsons’ subsidiary from [Parsons’] Houston payroll service
center.” Romano was informed that his employment would be “at will,”
meaning that either party could “terminate the employment relationship . . .
at any time, with or without cause.”
In addition to an annual salary of approximately $197,500, the offer
letter outlined that Romano would receive benefits such as: a year-end bonus
of $337.52 USD for each full week of assignment; a monthly living allowance;
moving expenses, including plane tickets for his family, shipment of household
goods, and reimbursement for medical expenses, inoculations, and visa/work
permits (in USD); private school tuition for two children; life, medical, dental,
and vision insurance; retirement benefits; and “[p]rotection against Mexican
income taxes on company-source income.” The offer letter further explained
that, “[d]uring the first few months of the project, . . . [Romano would] receive
a short[-]term agreement.” And only “[a]fter commercial terms [were] finalized
[would Romano] be assigned to a Parsons Mexican Service Company . . . and
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issued a long[-]term assignment agreement.” Romano accepted the position
and began employment accordingly.
Approximately seven months later, all U.S. Parsons employees working
in Mexico were set to become employees of 3DI, a Texas corporation and
subsidiary of Parsons. As Parsons had previewed in the offer letter, Romano
was required to execute new agreements as part of the transition: the Long
Term International Assignment Agreement (the “LTIAA”); the Local Mexico
Agreement (the “Local Agreement”); and the Agreement Regarding
Employment Arrangements (the “AREA”). In a detailed email, Parsons
explained the purpose of each employment agreement:
• The LTIAA outlined the terms and details of Romano’s assignment
in Mexico and assignment to 3DI, including compensation, bonus
structure, housing allowance, and other benefits.
• The Local Agreement outlined the details of Romano’s employment
with Parsons’ local entity, Parsons Ingenieria, S. DE R.L. DE C.V.
Parsons explained that the agreement was required to enable
Parsons to file Romano’s local Mexican taxes and deposit
allowances into his local Mexican Peso bank account. Finally,
Parsons emphasized that the agreement was a “requirement of
Mexican Federal Labor Law . . . in order for [Romano] to work in
Mexico” and that the agreement outlined “the Mexico labor
standards that [would] be observed while [Romano was] on
assignment in Mexico such as holidays, work rules, bonus
payments, etc.”
• The AREA outlined Romano’s employment relationship with 3DI,
acknowledged that Romano would be employed by a U.S. company
during his assignment in Mexico, and “affirm[ed] that [Romano
was] a US employee receiving US benefits, and as a US employee,
[Romano] renounce[d] any claims to Mexico benefits.”
Romano exchanged numerous emails with Parsons clarifying the terms of
these agreements before executing all three.
Later, after clients expressed some displeasure with Romano’s job
performance as Senior Design Manager, Parsons reassigned him to manage
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the design of the terminal building as lead architect. When Romano’s work on
this project came to a close, Parsons informed him that his employment would
also be ending. His last day was three months later—July 31, 2017.
2

Romano then filed suit against Parsons in Mexican labor court seeking
reinstatement of his employment and compensation for the time he was not
employed or, in the alternative, severance benefits under Mexican law. While
that suit was pending—as it remains today—Romano also applied for
unemployment benefits under Texas and U.S. law. He also applied for and
received short-term disability benefits through Parsons’ insurance plan
between August and October 2018,
3
and he received California state disability
benefits during this time.
Because Romano’s Mexican lawsuit undisputedly violates the terms of
the AREA, wherein he waived his right to pursue certain Mexican labor
benefits, Parsons filed suit for breach of contract in Texas state court. Romano
removed to federal court. The parties cross moved for summary judgment,
which the district court granted in favor of Romano. The district court
determined that the AREA is not a valid, enforceable contract under Texas law
because there was no consideration for the agreement and the AREA “is an
explicit attempt to circumvent Mexican employment laws.” Parsons now
appeals.

2
During this time, Parsons offered Romano a position as Lead Design Manager on a
project at a Houston airport, but Romano declined the offer.
3
After Romano’s employment ended, he elected to continue receiving Parsons
insurance benefits by paying his portion of the insurance premiums through February or
March 2018. Parsons then continued to pay for and provide Romano with these health
benefits through September 2018, even though Romano did not continue to pay his portion.
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II
We review a district court’s summary judgment order de novo, “applying
the same standard as the district court.” SCA Promotions, Inc. v. Yahoo!, Inc.,
868 F.3d 378, 381 (5th Cir. 2017). Summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).
Here, the only dispute is whether the AREA is a valid, enforceable contract,
which is a question of law we also review de novo. Id.
III
As noted, the district court determined that the AREA is not a valid,
enforceable contract under Texas law for two reasons: lack of consideration and
circumvention of Mexican laws. Predictably, Parsons argues that the district
court is wrong on both counts, while Romano insists the district court was,
mostly, spot on. Romano agrees with the district court’s conclusion that the
agreement is invalid under Texas law, but he urges us to find the agreement
invalid under Mexican law, without reaching Texas law. We begin with the
choice-of-law question before turning to the district court’s reasoning.
A
Though Romano acknowledges that the AREA contains a Texas choice-
of-law provision, he argues that Mexico law should instead control because
Mexico does not permit a person to waive his right to Mexican labor benefits.
But this argument is stuck in a tautology: we must employ foreign law to
invalidate a contract because foreign law says the contract is invalid.
Instead, while they are not unassailable, our default position is that
choice-of-law provisions should be enforced. Cardoni v. Prosperity Bank, 805
F.3d 573, 580–81 (5th Cir. 2015). To render such a provision unenforceable, a
party must demonstrate that:
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(a) the chosen state has no substantial relationship to the parties
or the transaction and there is no other reasonable basis for the
parties’ choice, or
(b) application of the law of the chosen state would be contrary to
a fundamental policy of a state which has a materially greater
interest than the chosen state in the determination of the
particular issue and which, under the rule of § 188 [of
Restatement (Second) of Conflict of Laws], would be the state of
the applicable law in the absence of an effective choice of law by
the parties.
Id. at 581 (quoting Restatement (Second) of Conflict of Laws § 187(2)).
The first subsection is inapplicable: 3DI is a Texas corporation, and that
fact alone is sufficient to demonstrate a reasonable basis for the choice-of-law
provision. See id. at 581–82.
The second subsection applies only if another state: (1) has a more
significant relationship with the parties and the transaction at issue than the
chosen state; (2) has a materially greater interest than the chosen state in the
enforceability of the provision at issue; and (3) has a fundamental policy that
would be contravened if the chosen state’s law is applied. Id. at 582.
1. More Significant Relationship
The “more significant relationship” test considers: (a) the place of
contracting; (b) the place of negotiation of the contract; (c) the place of
performance; (d) the location of the subject matter of the contract; and (e) the
domicil, residence, nationality, place of incorporation, and place of business of
the parties. Id. (citing Restatement § 188(2)). We weigh these factors “not by
their number, but by their quality.” Id. at 582–83 (internal quotation omitted).
And, by weight, the scales tip toward Texas.
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First, the place of contracting. Romano was in Mexico City when he
signed the AREA, but a representative of 3DI, a Texas corporation, affixed the
last signature. And “the place of contracting is the place where occurred that
last act necessary . . . to give the contract binding effect.” Restatement § 188,
cmt. e. The parties dispute whether the representative signed the agreement
in Texas or Mexico, but because this issue is the subject of Romano’s motion
for summary judgment, we must draw all reasonable inferences and view all
facts in favor of Parsons. See CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 272–
73 (5th Cir. 2009). Therefore, we assume the Lone Star state is the place of
contracting, but, in any event, this “is a relatively insignificant contact.”
Restatement § 188, cmt. e.
Second, the place of negotiation. Romano simultaneously argues that
there was no consideration for this contract—no bargain—and that the
contract was negotiated for in Mexico City. However, the record reflects that
the terms discussed in the AREA—the benefits that Romano would receive as
a U.S. employee working in Mexico City—were negotiated for by Romano while
he still lived in the United States (though not in Texas). And, at all times,
Parsons’ contract negotiations were overseen by employees in Texas. This
factor, which is “significant,” Restatement § 188, cmt. e, therefore, favors Texas
over Mexico.
Third, the place of performance. Performance is divided between two
locations. Romano was to perform in Mexico City. But Parsons’ performance—
payment of salary and provision of benefits—explicitly came from its Houston,
Texas payroll department. So this factor is not conclusively in favor of either
location.
Fourth, the subject matter of the contract. Without question, the subject
matter of the contract concerns Romano’s assignment in Mexico City. This
factor, therefore, favors Mexico.
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Fifth, the domicil, residence, nationality, place of incorporation, and
place of business of the parties. At the time of contracting, Romano was a U.S.
citizen living on temporary assignment in Mexico City, while 3DI was
headquartered in Texas. Again, an inconclusive factor.
To overcome the choice-of-contract provision, Romano was required to
show that Mexico had a more significant relationship with the parties and the
transaction than Texas. Even if we were to construe the first contact—place of
contracting—in favor of Mexico instead of Texas, Romano has failed to meet
his burden. The factors reflect, at best, that both Texas and Mexico have a
similarly significant relationship with the parties, which does not warrant
ignoring a contract’s forum-selection clause. See Access Telecom, Inc. v. MCI
Telecomms. Corp., 197 F.3d 694, 706 (5th Cir. 1999) (noting that the parties
had “a very symmetric relationship” between Texas and Mexico and
determining that, even if Mexican interests were more implicated than Texas
interests, the choice of law provision should be given some weight, and Texas
law should control “in such a close case”).
2. Materially Greater Interest in Enforceability
For the avoidance of doubt, we dutifully continue to the second prong,
whether Mexico has a materially greater interest in the enforceability of the
AREA than Texas. On balance, it does not. To be sure, Mexico has an interest
in the enforceability of it labor laws, but this interest simply does not
overshadow Texas’s interest in the enforceability of at-will employment
relationships with Texas corporations.
In Exxon Mobil Corp. v. Drennan, the Supreme Court of Texas explained
that “[w]ith Texas now hosting many of the world’s largest corporations, our
public policy has shifted . . . to one in which we value the ability of a company
to maintain uniformity in its employment contracts across all employees,”
regardless of where the individual employees reside. 452 S.W.3d 319, 329–330
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(Tex. 2014). The Court emphasized that this uniformity “prevents ‘the
disruption of orderly employer-employee relations’ within [] multistate
companies and avoids disruption to ‘competition in the marketplace.’” Id. at
330 (quoting DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 680 (Tex. 1990));
see also Restatement § 187 cmt. e (explaining that “[p]rime objectives of
contract law are to protect the justified expectations of parties . . . by letting
[them] choose the law to govern the validity of a contract”).
Despite the significance of this interest, Texas courts have declined to
apply choice-of-law provisions when ensuring uniformity was the contracted-
for state’s only interest in the contract and the entire agreement was otherwise
effectuated elsewhere. See, e.g., Exxon Mobil, 452 S.W.3d at 326–27 (applying
Texas law over New York choice-of-law provision where both employer and
employee were Texas residents); DeSantis, 793 S.W.2d at 679 (applying Texas
law over Florida choice-of-law provision where all business matters occurred
in Texas and noncompete provision concerned businesses opening in Texas).
But unlike in Exxon Mobil and DeSantis, here the relationship is divided
between the two localities. On the one hand, Romano resided in Mexico City
where the airport project was under way. On the other, the airport project was
directed by employees in the Houston office and Romano was paid in U.S.
dollars by a Texas entity, received protection from Mexico taxes by the Texas
entity,
4
and received U.S. employment benefits not required under Mexico
law,
5
all pursuant to an at-will employment relationship that began exclusively

4
3DI agreed to pay any Mexican income taxes Romano owed over and above those he
would incur as a U.S. employee. Conversely, if U.S. income taxes were higher, 3DI agreed to
pay Romano the difference.
5
Parsons explains, and Romano does not dispute, that Romano’s high annual salary
(nearly $200,000), living expenses, private-school tuition, insurance coverage, and retirement
benefits were offered because Romano “would be an American employee working for an
American employer under American law.” Parsons highlighted that it does not offer these
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in the United States. Notably, Mexico’s labor laws do not recognize at-will
employment relationships. As such, Texas’s interest in this matter is not
simply ensuring uniformity in a company’s employment practices. It also has
a unique interest in upholding an at-will employment relationship that was
directed by employees working in Texas and was originally entered into in the
United States by a Texas corporation and a U.S. citizen. Cf. Randall v. Arabian
Am. Oil Co., 778 F.2d 1146, 1153 (5th Cir. 1985) (acknowledging Saudi Arabia’s
interest in keeping its labor disputes within its country, but also “find[ing]
paramount [the United States’] interest in providing a forum to a United States
citizen seeking to sue a United States corporation on a[n] employment contract
negotiated and made in the United States”).
Mexico and Texas certainly have competing interests in the
enforceability of the AREA, but to overcome the choice-of-law provision in favor
of Texas, Romano needed to demonstrate that Mexico’s interest is materially
greater than Texas’s. We fail to see how Mexico’s interest in prohibiting a U.S.
citizen from waiving his right to seek Mexican labor benefits during his
temporary assignment in Mexico City materially outweighs Texas’s interest in
upholding a freely exercised, at-will employment relationship that was
originally formed in the United States between a Texas corporation and a U.S.
citizen. Therefore, the Texas choice-of-law provision applies.
3. Contravention of Fundamental Policy
Because Romano failed to satisfy the first two prongs, it isn’t necessary
to reach this factor. But we briefly acknowledge that Mexico does have a
fundamental policy interest in enforcing its labor laws. And Mexico does not
permit employees to waive their rights to the benefits its labor laws provide.

benefits and high salaries to individuals employed in Mexico under Mexican law, in part
because Mexican labor laws make those benefits untenable.
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However, this factor standing alone is not sufficient to override the parties’
contracted-for choice-of-law provision.
6
Therefore, we enforce the AREA’s
choice-of-law provision and apply Texas law. As such, we now turn to the
district court’s consideration of the AREA under Texas law.
B
The district court determined that the AREA lacked consideration
because it “was executed after the [Local Agreement] and the LTIAA and
purports to modify the [Local Agreement] and waive employment rights
without additional consideration.” Even assuming, for the sake of argument,
that the AREA was executed after the other two agreements,
7
the district
court’s conclusion misunderstands the nature of Texas at-will employment
contracts.
Texas courts have long acknowledged that “[p]arties have the power to
modify their contracts.” Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228
(Tex. 1986). And, like the original contract, the modification must reflect a
meeting of the minds and be supported by consideration. Id. In employment
at -will situations, either party has the right to end the employment
relationship at any time, for any reason. So, either party can also impose a
modification to the employment terms at any time, the consideration for which
being continued employment. Id. at 229. In other words, “when the employer

6
Romano repeatedly argues that we must apply Mexican law and find the agreement
invalid because, he alleges, to obtain the contract for the airport project, Parsons was
required to abide by all Mexican labor laws. But this argument is a red herring. Parsons’
contract for the airport project is a separate agreement between entities not subject to this
dispute. Whether the Mexican government chooses to terminate its agreement with Parsons
due to Parsons’ employment agreements is an issue for the parties privy to that contract, not
this court.
7
Romano suggested that he signed all three documents at the same time, and the
parties dispute whether the three contracts should be considered as a single instrument, such
that consideration for one constitutes consideration for all. Because resolution of that
particular disagreement won’t affect our outcome, we decline to weigh in.
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notifies an employee of changes in employment terms, the employee must
accept the new terms or quit. If the employee continues working with
knowledge of the changes, he has accepted the changes as a matter of law.” Id.
Now properly oriented in Texas law regarding at-will employment, we
can consider whether the AREA is a valid modification of the employment
relationship between Parsons and Romano. A modification is valid if the
employee (1) had notice of the change; and (2) accepted the change. Id.
Notice of a change in employment must be unequivocal and definite. Id.
Here, as outlined above, Parsons provided a detailed email explaining the
three agreements and their relationship with one another. Further, the AREA
explicitly explained:
Employee acknowledges that he is employed solely by Employer in
the United States of America as an at-will employee and receives
all their employment benefits in accordance with the State of
Texas and the Federal laws of the United States of America. . . .
The Employee’s employment services will be performed under the
auspices of another affiliate of Employer, Parsons Ingenieria S. de
R. L. de C.V. . . .

Employee has signed or will sign a labor agreement with Parsons
Ingenieria (the “[Local Agerement]”) which contract is a
requirement of Mexican Federal Labor Law . . . in order for
Employee to work in Mexico on the Project. This Agreement affects
certain rights that Employee would otherwise have under Mexican
law and the [Local Agreement]. Specifically, Employee voluntarily
waives certain of those rights and to undertake additional
obligations toward Employer as described herein in consideration
of being employed by Employer on the Project and receiving
compensation and benefits he would not otherwise receive. . . .

The Employee waives the right to make any claims to any
employment, social security or any other type of benefit that could
be afforded to him by the Mexican Labor Law, the Mexican Social
Security Law or any other Mexican law in connection with the
employment services performed for Employer or its related
companies in Mexico.
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Despite the straightforward explanation in the AREA, Romano argues
that he did not have notice that the AREA was modifying his employment
relationship because the Local Agreement, to which the AREA refers, states
that it “may only be modified, suspended, rescinded or terminated in the cases
and under the terms provided herein and in the Federal Labor law.” Therefore,
Romano argues, he could not have had notice of which agreement controls.
Romano’s argument feigns ignorance. The AREA explicitly and
unequivocally stated its purpose and effect: that to continue receiving U.S.
employment benefits, Romano must waive rights he would otherwise have
under Mexican law. For Romano’s argument—that he did not have notice—to
have merit, it must be true that Romano did not believe, or at least doubted
whether, the AREA had any effect. In light of the email explaining the
relationship of the three agreements, the unequivocal expressions in the AREA
itself, and Romano’s subsequent conversations with Parsons regarding the
agreements—wherein he sought clarification on matters he was unclear about
but did not express concerns regarding the AREA—there can be no doubt that
Romano received clear notice of the modifications to his employment
relationship with Parsons.
8

8
Romano points to two cases to insist that he did not have notice of the modification
to his employment arrangement, but both cases are inapposite. For instance, in Hathaway,
the Texas Supreme Court found that the employee did not have sufficient notice of a definite
change to his employment terms where, after complaining of proposed change, the employee’s
superior told him “not to worry about the change” and that he “would take care of the
problem.” 711 S.W.2d at 229. Similarly, in Moran v. Ceiling Fans Direct, Inc., we found a lack
of notice where the employer orally noted that the company would be introducing a new
arbitration policy, but it failed to read the policy to the employees, explain the new arbitration
policy, ensure that employees received a copy of the policy, or require employees to sign an
acknowledgment of the policy (though they were required to sign acknowledgments of other
policies). 239 F. App’x 931, 936–37 (5th Cir. 2007) (unpublished). Further, the employer
repeatedly told employees that the company “would take care of them” and “not to worry”
about the arbitration agreement. Id. at 937. In contrast to the equivocation presented in these
cases, Parsons was thorough and unwavering in its explanation of the AREA and its
requirement that it be executed as a condition of employment.
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Because Romano does not contest that he accepted the modifications by
signing the AREA and continuing his employment with Parsons, and we have
determined that he had sufficient notice of the changes, we conclude that the
AREA is a valid modification to Romano’s at-will employment relationship
with Parsons. The district court was, therefore, incorrect to find the agreement
invalid for lack of consideration.
C
The district court further found that the AREA is unenforceable because
“it is an explicit attempt to circumvent Mexican employment laws.” Quoting
Access Telecom, the district court noted that “a contract made with a view of
violating the laws of another country, though not otherwise obnoxious to the
laws either of the forum or of the place where the contract is made, is illegal
and will not be enforced.” 197 F.3d at 707. But this quote from Access Telecom
cuts off the discussion far too quickly. In Access Telecom, we went on to analyze
what that general principle means today and noted that “modern choice of law
analysis in Texas applies the law of the forum with the ‘most significant
relationship’ to the contract in question.” Id. (internal citation omitted). And
so, it is entirely possible that “a contract legal in the U.S. may be illegal in
Mexico, yet under choice of law analysis, Mexican law might not be chosen to
apply.” Id. And “[i]f Mexican law does not apply to determine validity, then to
say the contract is illegal in Texas because it violates Mexican law reverts too
quickly back to a discarded conclusion.” Id.
So, despite the district court and Romano’s suggestion otherwise, we
need not invalidate an agreement simply because that agreement is contrary
to the laws of the country where the contract is performed. Id. Instead, we will
defer to foreign law if one of two circumstances exists: the contract presents a
party with a catch-22; or the principle of comity so requires. Id. at 708.
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First, we will defer to foreign law and invalidate an agreement if the
contract—legal in the United States but illegal in Mexico—presents a catch-22
for one of the parties, such that the party must choose to either face liability in
Mexico or face breach of contract claims in the United States. Id. This situation
is not present here. Because Romano is not obligated to pursue Mexican labor
benefits, he is not breaking Mexican law by honoring the terms of his contract
with Parsons. See id.
Second, we will defer to foreign law if the principle of comity demands it.
Id. Comity follows the “golden rule”: do unto others as you would have them do
unto you. See id. Access Telecom points to Ralston Purina Co v. McKendrick as
an example where comity would be required. There, Texas invalidated a
contract to export goods into Mexico because, under Mexican law, the exporters
were smugglers who did not have the necessary Mexican licenses for their
ventures. 850 S.W.2d 629, 639 (Tex. App.—San Antonio 1993). The Access
Telecom court explained that, had the court been applying the modern
analysis, the principle of comity would have been a strong basis for holding the
contract illegal. 197 F.3d at 708. We would invalidate a contract that requires
smuggling goods from Texas into Mexico, even if the individuals legally owned
the goods in the United States, because we would want Mexico to do the same
in return.
Romano argues that the principle of comity applies here by drawing an
analogy to Fair Labor Standards Act.
9
He proffers that the United States
would expect a Mexican court to apply the FLSA to a Mexican citizen working

9
Romano also argues that the contract is unenforceable because it is against public
policy in Texas to permit waivers of intentional torts, including “illegal termination.”
However, Romano has not demonstrated why his termination would constitute a tort under
Texas law. He was an at-will employee, and there is no suggestion that Romano was
terminated for declining to perform an illegal act. See Safeshred, Inc. v. Martinez, 365 S.W.3d
655, 659 (Tex. 2012).
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in the United States. But we’re not so convinced. First, for the comparison to
work, we would need to assume that the Mexican citizen originally entered into
the employment relationship with a Mexican employer while in Mexico for a
temporary assignment in the United States and later received Mexican
unemployment benefits. Second, we would have to assume that the employer
paid the employee in Pesos and had offered the employee benefits greater than
those required in the United States in exchange for his relinquishment of FLSA
rights. And under those more analogous circumstances, it is unlikely that the
United States has any expectation that Mexico would follow the “golden rule.”
To this point, Parsons highlights cases where courts of varying
jurisdictions declined to apply the principle of comity in similar circumstances.
See, e.g., Thermo Fisher Scientific Inc. v. Ducharme, 2008 WL 11399557 (S.D.
Tex. Sept. 30, 2008) (declining to apply the principle of comity to invalidate
agreement waiving a U.S. employee’s right to sue his U.S. employer and its
Mexican subsidiary for severance benefits under Mexican law); de Leon v.
Tesco Corp., 2006 WL 3313357 (Tex. App.—Houston Nov. 16, 2006) (upholding
declaratory judgment in favor of employer where employee violated agreement
by seeking Mexican labor benefits he had waived); VF Jeanswear Ltd. P’ship
v. Molina, 320 F. Supp. 2d 412 (M.D.N.C. 2004) (granting summary judgment
in favor of employer where employee sought additional severance benefits
available under Honduran law after waiving her right to do so). While these
cases are not binding on this court, they do suggest that U.S. courts do not have
a clear expectation that foreign courts will enforce U.S. labor laws, such that
the principle of comity would require us to enforce the labor laws of foreign
nations when the parties have knowingly assented to be bound instead by U.S.
law.
Finally, Romano argues that the agreement is unenforceable because
Parsons intended to break the laws of Mexico. See Access Telecom, 197 F.3d at
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No. 19-20620
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708 (noting that there “appears to be” a public policy interest in precluding
domestic forums from encouraging willful attempts to break foreign laws). But
the record does not support this contention. Parsons provided Romano with the
Local Agreement as required by Mexican law, which accurately set forth
Romano’s salary, work hours, holidays, and other terms of their employment
agreement that were not affected by the AREA. That Parsons then amended
the applicability of certain terms referenced in the Local Agreement does not
reflect a willful violation of Mexican law. This is particularly true as Parsons
expressly informed Romano that the agreements were developed in
consultation with both U.S. and Mexican attorneys and asked Romano to raise
any questions he had about the agreements, which further suggests that
Parsons intended to act within legal confines.
Because the AREA does not create a dilemma for the parties, forcing
them to choose between U.S. contract damages and Mexican liability, the
principle of comity does not require us to apply Mexican law over Texas law,
and Parsons did not attempt to willfully violate Mexican law, the district court
erred in finding the AREA unenforceable.
IV
Romano, a U.S. citizen, entered into an at-will employment relationship
with a U.S. corporation and, in exchange for a higher salary and other perks,
waived his right to seek certain benefits afforded by Mexican labor law. We
will not now override the parties’ freely executed contract to enforce Mexican
law over Texas law and deprive Parsons the benefit of its bargain. Instead, we
determine that the AREA is a valid, enforceable contract. We therefore
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No. 19-20620
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REVERSE the district court’s ruling and GRANT summary judgment in favor
of Parsons.
10

10
Because we grant summary judgment in favor of Parsons on its breach of contract
claim, we don’t reach its alternative claims regarding declaratory relief or unjust enrichment.
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