No. 20-3061 ___________________________

Cara Miller

lllllllllllllllllllllPlaintiff - Appellant

v.

Honkamp Krueger Financial Services, Inc.

lllllllllllllllllllllDefendant - Appellee

Blucora, Inc.

lllllllllllllllllllllDefendant

------------------------------

Mariner Wealth Advisors, LLC lllllllllllllllllllllThird Party Defendant - Appellant

___________________________

No. 20-3081 ___________________________

Cara Miller

lllllllllllllllllllllPlaintiff - Appellant

v. Honkamp Krueger Financial Services, Inc.

lllllllllllllllllllllDefendant - Appellee

Blucora, Inc.

lllllllllllllllllllllDefendant

------------------------------

Mariner Wealth Advisors, LLC lllllllllllllllllllllThird Party Defendant - Appellant

___________________________

No. 20-3400 ___________________________

Cara Miller

lllllllllllllllllllllPlaintiff - Appellant

v.

Honkamp Krueger Financial Services, Inc.

lllllllllllllllllllllDefendant - Appellee

Blucora, Inc.

lllllllllllllllllllllDefendant

------------------------------

-2- Mariner Wealth Advisors, LLC

lllllllllllllllllllllThird Party Defendant - Appellant ____________

Appeals from United States District Court for the District of South Dakota - Western ____________

Submitted: March 18, 2021 Filed: August 24, 2021 ____________ Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges. ____________ ERICKSON, Circuit Judge.

Cara Miller left her employment at Honkamp Krueger Financial Services, Inc. (“HKFS”) and commenced this action, seeking a declaratory judgment that the restrictive covenants in her various employment contracts were unenforceable. HKFS brought counterclaims against Miller and a third-party complaint against Miller’s new employer, Mariner Wealth Advisors, LLC (“Mariner”). HKFS successfully sought preliminary injunctions enjoining Miller from breaching the non-compete and non- solicitation provisions in her employment contracts. Miller and Mariner appeal. We reverse and vacate the preliminary injunctions. I. BACKGROUND

In 2006, Miller entered into a written employment agreement with HKFS (the “Employment Agreement”) and began working as a financial advisor. The Employment Agreement contained restrictive covenants, including non-compete and non-solicitation provisions. On July 25, 2016, Miller and HKFS entered into an

-3- Agreement Ancillary to Employment (the “Ancillary Agreement”) that updated the non-solicitation provision. Notably, the Ancillary Agreement did not include a non- compete provision.

Blucora, Inc. acquired HKFS and Miller responded by terminating her employment on September 4, 2020. That same day she commenced this action against HKFS and Blucora seeking a declaration that the restrictive covenants in the Ancillary Agreement are unenforceable. Miller immediately began working for Mariner who is a direct competitor of HKFS.

On September 7, 2020, Miller sent a letter to John Darrah, the chief executive officer for HKFS, informing him that she was terminating the Employment Agreement to the extent it survived the Ancillary Agreement. The next day she amended her complaint, alleging that the Employment Agreement was superseded by the Ancillary Agreement (which would have the effect of abrogating the Emp