                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-2244


GENERAL ASSURANCE OF AMERICA, INC.,

                Plaintiff - Appellant,

           v.

OVERBY-SEAWELL COMPANY,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:11-cv-00483-TSE-JFA)


Argued:   May 15, 2013                    Decided:   July 17, 2013


Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED:    J. Randolph Evans, MCKENNA, LONG & ALDRIDGE, LLP,
Washington, D.C., for Appellant. J. Kevin Fee, MORGAN, LEWIS &
BOCKIUS, LLP, Washington, D.C., for Appellee. ON BRIEF: Shari
L. Klevens, MCKENNA, LONG & ALDRIDGE, LLP, Washington, D.C., for
Appellant.   Jessica M. Zetwick, Erik M. Kosa, MORGAN, LEWIS &
BOCKIUS, LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Plaintiff General Assurance of America (GAA) brought this

action against Overby-Seawell Company (OSC), alleging breach of

contract     and    related    claims.       GAA,   a   licensee    of   certain

software owned by OSC, alleged that OSC breached the parties’

confidentiality agreement and violated various common law and

statutory duties when OSC allegedly contacted three of GAA’s

customers.     The district court awarded summary judgment in favor

of OSC on all claims.          Upon our review, we affirm the district

court’s judgment.


                              Factual Background

     GAA,     a     Virginia     corporation,       and    OSC,     a    Georgia

corporation,       both   provide    “collateral    tracking      services”   to

banks.     OSC owns collateral tracking software that is designed

to help banks monitor the insurance status of the collateral

securing    their    loans.     In   November    1999,    in   anticipation   of

entering into a business relationship, GAA and OSC entered into

a confidentiality agreement.

     As relevant to this case, the confidentiality agreement

provided in part:

     As a condition to GAA furnishing such information
     [regarding “GAA’s clients, program design, policy
     forms, coverage parameters, application, etc.”], OSC
     agrees   to  treat   confidentially such  information
     furnished to OSC by GAA or on GAA’s behalf (the non-
     disclosure provision). . .

                                         2
      It is further understood that OSC will not solicit GAA
      clients for CPI [collateral protection insurance] or
      other services once identified as clients or potential
      clients of GAA (the non-solicitation provision). . .

The confidentiality agreement also stated that “any documents,

reports, forms or financial information, which OSC may provide

to GAA or GAA to OSC, will be used for review and evaluation of

the CPI or other program(s) and will be kept confidential by

GAA, OSC, their employees, and representatives.”

      Shortly     after    they    signed       the   confidentiality        agreement,

GAA and OSC entered into a software licensing agreement in which

GAA paid various fees to use OSC’s collateral tracking software.

To   utilize      the   licensed    OSC     software,      GAA    stored      on   OSC’s

database servers “every single piece of data, every certificate,

[and] every master policy” related to GAA’s business.                              Also,

during the parties’ decade-long relationship, OSC occasionally

assisted GAA in marketing its services to potential clients by

participating in GAA’s sales presentations.

      GAA   contends        that     OSC        violated    the       confidentiality

agreement    by    generally      abusing       its   access     to   GAA’s    business

information and by “luring” three particular clients away from

GAA to become clients of OSC.              The first such client, Macon Bank

(Macon),    had    a    long-standing       relationship       with    Gil    Swaim,   a




                                            3
“sub-agent” of OSC. 1            Swaim met with Macon personnel in 2010 at

Macon’s office in North Carolina.                          During that meeting, Swaim

advised        Macon’s     assistant      vice        president   that    GAA       was   not

providing to Macon all available collateral tracking services.

In   a       “follow-up”    email,       Swaim    requested       a   copy     of    Macon’s

contract with GAA “so that OSC could assist Macon [] in the

termination of the contract with GAA.”                       Swaim arranged a meeting

with Macon representatives at OSC’s offices in Georgia, which

later was cancelled.               Macon remains a GAA client and has not

advised GAA that it intends to terminate its contract with GAA.

         The   second     client    at    issue,       Capital    City    Bank      (Capital

City),        was    contacted    in   2010      by    a    different    OSC   sub-agent,

Securitas           Financial    Services,       after      Capital   City     had    become

dissatisfied with GAA’s collateral tracking services.                               Like the

relationship between Macon and Swaim, Capital City and Securitas

had an ongoing, longstanding association.

         Securitas coordinated two meetings between OSC and Capital

City regarding OSC’s collateral tracking services.                           One of these

         1
       The “Sub-Agent’s Agreement” between Swaim and OSC stated
that the parties created “a contractual relationship under which
they will, from time to time utilize each other’s experience,
expertise, and resources in connection with the placement of
Collateral Protection and related coverage for banks and other
lending institutions.”   The agreement authorized Swaim, as sub-
agent, “to solicit those insureds as may be from time to time
specifically designated or agreed to by [OSC] for the placement
of collateral protection insurance.”



                                              4
meetings was held at OSC’s offices, and the other meeting took

place   at     Capital     City’s    offices          in    Florida.      Despite       these

efforts,       Capital     City     never    signed          a   contract        with    OSC.

Although      Capital    City     indicated       its       intent   to    terminate      its

contract with GAA, the contract remained in effect at the time

of the summary judgment proceedings in the district court.

       In    2008,   the    third     bank       at    issue,     Yadkin    Valley       Bank

(Yadkin Valley), purchased another bank that was a client of

GAA.     During the consolidation and transition process, Yadkin

Valley invited GAA and other companies, but not OSC, to make

sales       presentations     regarding          servicing       options     for        Yadkin

Valley’s loans.          GAA gave a presentation to Yadkin Valley in

which an OSC employee participated.                        Yadkin Valley later orally

notified GAA that it had been selected to provide collateral

tracking services for all Yadkin Valley’s loans.

       Shortly after making this verbal commitment to GAA, Yadkin

Valley became interested in leasing the OSC software directly

from    OSC,    rather     than     subleasing         the    software     through       GAA.

Yadkin Valley relayed this interest to Swaim, who had been doing

business      with   Yadkin     Valley   for      several        years,    and    who    only

later became a sub-agent of OSC.                  Swaim contacted OSC on behalf

of Yadkin Valley, and invited OSC to give Yadkin Valley a sales

presentation.



                                             5
       OSC made a presentation to Yadkin Valley personnel in June

2009,      highlighting       the    differences      between       OSC’s   and   GAA’s

services.      Following this presentation, Yadkin Valley decided to

hire OSC at a price slightly less than the previous contract

with GAA.      Yadkin Valley thereafter terminated its contract with

GAA.

       In May 2011, GAA filed the present lawsuit against OSC,

alleging      breach     of    the    parties’       confidentiality        agreement,

breach of fiduciary duty, tortious interference with contractual

relations, and business conspiracy under Virginia statutory law.

GAA    also    requested       an    accounting      and     the    imposition    of   a

constructive trust based on OSC’s contacts with GAA clients.

After      hearing     extensive      oral       argument,    the    district     court

awarded OSC summary judgment on all of GAA’s claims. 2                      GAA timely

appealed.




       2
       On appeal, GAA does not challenge the district court’s
award of summary judgment to OSC on GAA’s request for an
accounting and the imposition of a constructive trust.       GAA
maintains, however, that it has preserved a “reviv[al]” of those
claims in the event that we conclude that OSC owed a fiduciary
duty to GAA.



                                             6
                           District Court Holdings

      Applying        well-settled     principles     of     Georgia   law, 3    the

district court concluded that the non-solicitation provision of

the   confidentiality       agreement     was   unenforceable        because    that

provision was not limited in time.              See Cox v. Altus Healthcare

& Hospice, Inc., 706 S.E.2d 660, 664 (Ga. Ct. App. 2011) (non-

solicitation     provisions     in   an    agreement     are    unenforceable     on

their face when they do not contain a time limitation or a

geographic limitation).           The district court further concluded

that it could not add such a time limitation to the parties’

contract.

      The district court also held that the record lacked any

evidence that OSC actually had solicited GAA’s clients.                          The

court     concluded     that,   instead,      OSC   merely     had   responded    to

offers of business upon contacts initiated by Yadkin Valley and

Capital City themselves, and that Swaim did not reach out to

Macon at OSC’s direction.            With respect to the non-disclosure

provision, the court explained that although the absence of a

time limitation did not render the provision unenforceable per

se, the record lacked any evidence that OSC had made improper

disclosures      of     confidential      information.         Accordingly,      the

      3
       The parties agree that the breach of contract claim is
governed by Georgia law pursuant to the choice of law provision
contained in the confidentiality agreement.



                                          7
district court awarded summary judgment to OSC on the breach of

contract claim.

     The district court next addressed GAA’s claims of tortious

interference       with     contract,     breach        of     fiduciary    duty,    and

conspiracy under the Virginia business conspiracy statutes.                         The

district court began its analysis by rejecting GAA’s contention

that its tort claims were governed by Virginia law.                             Applying

Virginia’s choice of law rules, the district court reasoned that

the law of the states in which OSC’s allegedly wrongful conduct

occurred governed those claims.                 Accordingly, the district court

held that the different tort claims were subject to the law of

the respective states in which GAA’s clients were located.

     The district court ultimately concluded that GAA had failed

to establish that OSC had a fiduciary relationship with GAA and,

therefore, that OSC’s alleged misconduct could not support a

claim    for   breach     of    fiduciary       duty.        Regarding    the   tortious

interference claim, the district court held that OSC did not

induce the termination of GAA’s contract with Macon, which still

remains a GAA client.           The court also concluded that OSC had not

wrongfully interfered with GAA’s contract with Yadkin Valley,

because    OSC’s    contacts       with     Yadkin      Valley     were    “reasonably

related to a legitimate business interest,” and the evidence

failed    to    show       that    OSC      acted       maliciously        or   without

justification.            The   court     similarly          rejected    the    tortious

                                            8
interference     claim    regarding       Capital    City,      stating      that   the

“record is devoid of evidence that OSC employed improper methods

in its interactions with Capital City.”

      Finally,    relying    on     the       constitutional         principle      that

states   may    not   regulate    commerce       occurring      entirely      outside

their borders, the district court concluded that GAA’s claim of

a statutory business conspiracy under Virginia Code §§ 18.2-499

& -500 failed as a matter of law, because none of the allegedly

conspiratorial acts occurred in Virginia.                    The district court

accordingly     awarded   summary     judgment       to   OSC    on    the   business

conspiracy claim.



                             Issues on Appeal

      We review de novo the district court’s award of summary

judgment.      Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir.

2013).   Upon our consideration of the record, the briefs, and

the   parties’    oral    argument,    we      affirm     the   district      court’s

judgment.      In reaching this result, we agree substantially with

the   district    court’s    reasoning         set   forth      in     its   thorough

opinion, and disagree only with respect to the court’s choice of

law analysis regarding the tortious interference with contract

and breach of fiduciary duty claims.                  Additionally, we decide

GAA’s business conspiracy claim on a different basis than the

one chosen by the district court.

                                          9
                                 Contract Claims

       In rejecting GAA’s breach of contract claims, the district

court,     as    required      by        Georgia   law,   correctly       applied     the

principle of strict scrutiny to the non-solicitation and non-

disclosure          provisions       of      the     confidentiality          agreement.

Applying such strict scrutiny, we likewise hold that the non-

solicitation         provision      is    unenforceable     because      it   lacks   any

time limitation, and a court is not permitted to read into a

document such a critical term that is plainly absent.                           See Ga.

Code   Ann.     §    13-2-2   (parol       evidence   rule     under     Georgia    law);

Northside Hosp., Inc. v. McCord, 537 S.E.2d 697, 699 (Ga. Ct.

App. 2000) (restrictive covenants subject to strict scrutiny may

not be “blue penciled”).

       We also agree with the district court that the record lacks

any    evidence       that    OSC    breached      either    the    non-solicitation

provision or the non-disclosure provision of the confidentiality

agreement.           GAA’s president and corporate designee could not

identify        in     his     deposition          testimony       any    confidential

information that OSC allegedly had disclosed.                      GAA’s unsupported

speculation that such information “must have been disclosed” is

insufficient to create a genuine dispute of material fact to

prevent the entry of summary judgment.                       See Othentec Ltd. v.

Phelan, 526 F.3d 135, 142 (4th Cir. 2008).



                                              10
                    Virginia Business Conspiracy Claim

      To   establish       a    civil   conspiracy      under    Virginia       Code    §§

18.2-499 & -500, a plaintiff must prove by clear and convincing

evidence     that    the       defendant    acted     “for     the    purpose    of     []

willfully    and    maliciously         injuring     another”    in    his    business,

that is, “the defendant[] acted intentionally, purposefully, and

without lawful justification, and [] such actions injured the

plaintiff’s business.”            Id. § 18.2-499; N. Va. Real Estate, Inc.

v. Martins, 720 S.E.2d 121, 133 (Va. 2012) (citation omitted).

In support of its business conspiracy claim, GAA asserts that it

presented    sufficient         evidence    to     establish    OSC’s    willful       and

malicious motive to injure GAA in its business.                      We disagree.

      The evidence on which GAA relies consists of deposition

testimony    given    by       GAA’s    president,     which    simply       repeated    a

statement made to him by a former OSC employee, who in turn was

repeating a statement allegedly made by OSC’s president at an

OSC   company     meeting.         In   that      statement,    the    OSC    president

allegedly indicated that he intended to “go out, take [GAA’s]

business    and     put    [GAA]    out    of     business.”         Plainly,   as     the

district     court        concluded,       this     evidence     was     inadmissible

hearsay.     The balance of the record fails to establish that OSC

acted with malice and intended to injure GAA’s business, but

merely shows that OSC acted to promote its legitimate business

interests.      Thus, OSC’s permissible motivation for its actions,

                                            11
standing alone, negates GAA’s business conspiracy claim. 4                           Va.

Code Ann. § 18.2-499 (a conspiracy requires that the defendant

acted for “the purpose of [] willfully and maliciously injuring

another”) (emphasis added); see also Advanced Marine Enters. v.

PRC, Inc., 501 S.E.2d 148, 154-55 (Va. 1998) (the conspiracy

statutes    do    not    require     that      the    defendant’s       “primary     and

overriding purpose is to injure another,” but rather that the

defendant    acted      with    “legal   malice”).         Given    this      lack   of

evidence of improper motive, we conclude that the district court

did not err in awarding summary judgment to OSC on the business

conspiracy claim.



                                Other Tort Claims

     We    turn   to    consider     GAA’s     remaining       claims    of   tortious

interference      with     contract      and     breach    of     fiduciary     duty.

Although    we    affirm       the   district        court’s    award    of   summary

judgment to OSC on these claims, we first clarify the choice of

law analysis applicable to the resolution of the claims.

     We apply the choice of law rules of Virginia, the forum

state.     Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496

     4
       Because the record wholly fails to support a business
conspiracy claim under the Virginia statutes, we need not
address GAA’s argument that the district court erred in
declining to apply the Virginia statutes to the out-of-state
conduct at issue in this case.



                                         12
(1941).        Based on these choice of law principles, we apply to

tort actions the law of the place where the wrong occurred.

Milton v. IIT Research Inst., 138 F.3d 519, 521 (4th Cir. 1998).

Under Virginia law, the “place of the wrong” is the place where

“the    last    event   necessary     to    make     an   [actor]    liable      for    an

alleged tort takes place.”            Quillen v. Int’l Playtex, Inc., 789

F.2d 1041, 1044 (4th Cir. 1986) (citation omitted).                        For claims

of tortious interference with contract and breach of fiduciary

duty, the occurrence of the plaintiff’s injury marks the last

event     necessary       to   establish         liability.        See    Collelo       v.

Geographic       Servs.     Inc.,    727     S.E.2d       55,    62-63    (Va.     2012)

(citation omitted) (explaining elements of tortious interference

with contract claim); Carstensen v. Chrisland Corp., 442 S.E.2d

660, 666 (Va. 1994) (breach of fiduciary duty requires proof of

“duty, breach, and resulting damage”).

       With regard to GAA’s claims of tortious interference and

breach of fiduciary duty involving OSC’s contacts with Yadkin

Valley, we conclude that GAA’s alleged injury occurred in North

Carolina, the place where Yadkin Valley terminated its contract

with    GAA,    which   was    the   last    event    necessary      to   render       OSC

liable for the alleged torts.                In reaching this conclusion, we

reject     GAA’s    contention       that        Virginia,      rather    than     North

Carolina, was the place of GAA’s alleged injury in the Yadkin

Valley    matter.         Virginia    was        merely    the    place    where       GAA

                                            13
ultimately suffered its financial losses, not the location where

the last event necessary to render OSC liable took place.                                          We

will not apply the law of a state in which only the effect of

the wrongful act, such as economic impact, is felt.                                 Milton, 138

F.3d at 522.

       Rather       than    focusing         on    the    location      of   the      last    event

necessary        to     establish       liability         on     the    part     of    OSC,       the

district        court    instead       made       its    choice    of    law     determination

based on the location of “the alleged harmful contact between

OSC and GAA’s clients.”                   Regardless of this misplaced focus,

however, the district court’s ultimate application of the law of

North       Carolina       to    the     claims         involving       Yadkin      Valley        was

correct,        because     that   was        the   location       where     the      last    event

necessary to establish liability occurred.                             Quillen, 789 F.2d at

1044.

       We    also     hold      that    we    need       not   decide    what       state’s       law

applies to the tort claims involving Capital City and Macon,

because those claims cannot stand irrespective of the choice of

law.         Even     assuming         that       GAA    adequately       pleaded       tortious

interference          claims     involving          Capital      City    and     Macon,       those

claims fail as a matter of law.                           GAA did not prove that OSC

caused      a    termination       of     GAA’s         relationships        with     these       two

banks, which is a required element of the cause of action.                                        See

Collelo,        727     S.E.2d     at    62-63.            The    record       before        us    is

                                                  14
undisputed that neither bank ever executed a contract with OSC,

and both remain clients of GAA.

     Next, we conclude that despite GAA’s contentions to the

contrary, the claim of tortious interference involving Yadkin

Valley and all the claims of breach of fiduciary duty are merely

re-packaged    versions        of   GAA’s     claim    for     breach     of    the

confidentiality agreement, which we already have concluded is

without merit.    The tortious interference claim involving Yadkin

Valley fails as a matter of law because the record is devoid of

evidence   that   OSC   “acted      with    malice    and    for   a   reason   not

reasonably    related     to    the   protection       of     [its]    legitimate

business interest.”       Cameron v. New Hanover Mem’l Hosp., Inc.,

293 S.E.2d 901, 916 (N.C. Ct. App. 1982) (citation omitted).

     The record before us likewise fails to establish that OSC

owed a fiduciary duty to GAA.          The record shows that GAA and OSC

entered into an arms-length business agreement, under which all

of OSC’s obligations to GAA were based.               Thus, under either the

state law applied by the district court, or under Virginia law

as advocated by GAA, OSC did not owe a fiduciary duty to GAA.

See Crumley & Assocs., P.C. v. Charles Peed & Assocs., P.A., 730

S.E.2d 763, 767 (N.C. Ct. App. 2012) (“North Carolina courts

generally find that parties who interact at arms-length do not

have a fiduciary relationship with each other, even if they are

mutually interdependent businesses.”) (citation omitted); Taylor

                                       15
Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So.2d 536, 541

(Fla. Dist. Ct. App. 2003) (“When the parties are dealing at

arm’s length, a fiduciary relationship does not exist because

there is no duty imposed on either party to protect or benefit

the other.”); Augusta Mut. Ins. Co. v. Mason, 645 S.E.2d 290,

293-95    (Va.   2007)    (explaining          that    no   claim      for    breach   of

fiduciary      duty   arises   when      the    defendant’s       only       obligations

derive    from   a    contractual     relationship          between     the    parties).

For   these    reasons,   we   hold    that      the    district       court    properly

awarded summary judgment to OSC on all the claims of tortious

interference with contract and breach of fiduciary duty.



                               Conclusion

      In sum, we hold that the district court did not err in

awarding      summary   judgment    in    favor       of    OSC   on    all    of   GAA’s

claims.    We therefore affirm the district court’s judgment.



                                                                                AFFIRMED




                                          16
