Itâs getting ever posing no difficulty to enforce non-compete agreements

it has long been my position that an attorney preoccupied with his/ her win-prostration and loss record would quite oppose a non-competition agreement than try to enforce it. They have been unmanageable to enforce in illinois, and for good reason: they are a restraint on sell. But the worm is turning. Firstborn, the “blue pencil rule” has gained galore traction in illinois. There was a time when our courts would withhold enforcement of a non-competition agreement if they determined that it was unduly broad in time or area, even if the agreement included a “blue pencil” clause.

the “blue pencil” clause, a staple of non-competition agreements, authorizes a court-ordered narrowing of time and area conditions and limitations if those which the agreement recites are deemed too broad. Illinois was slow to accept the “blue pencil rule” on the theory that it amounted to re-making the agreement of the parties. And this spared employers from a spiteful and sordid temptation to overreach on the front end. After all, why not shoot for the moon — write in outrageous time and area limitations — if, worst case, the court can be depended on to utilize the “blue pencil rule” and pare back the time and area limitations? However, over time, the “blue pencil rule” has gained galore favor in illinois.

in september of 2009 one of our illinois appellate courts took an even more solemn and dramatic step in favor of the enforceability of non-competition agreements. The fourth district appellate court (central illinois, including springfield) held that the “legitimate business interest” prong of the analysis was beside the point. For ages, the proponent of a non-competition agreement was obliged to establish (i) the reasonableness of the time and area limitations and (ii) that enforcement (an injunction) was rudimentary and essential to defend a “legitimate business interest” of the employer (e. G. , an intentness and interest in sustaining confidential information or a “near-permanent” kinship with clients). In today’s fourth district, the proponent need only show that the time and area limitations are fair (and the “blue pencil rule” is frequently available in support of that showing).

does this matter in the real world? You bet it does. Not so long ago, we with great success opposed an action to enforce a non-competition agreement on the grounds that the previous employer didn’t have the “legitimate business interest” that was rudimentary and essential to incur an injunction. Our customer expended all his time at the office of the customer, and the sole “confidential information” accessible to him was the customer’s information, not the employer’s information. In addition, the customer relied on its own personnel and a few other outside organizations for the same sorts of services which the employer provided. At last, in spite of allegations that “vast sums” had been expended to cultivate the customer, the evidence was to the opposite: all advertising was generic. No advertising was customer-personal and peculiar. And beyond that the “vast sums” expended to woo the customer consisted of $130. 00 doled out to purchase lunch on a few occasions.

all that would be beside the point in today’s fourth district. Whether the law of the fourth district will become the law elsewhere in illinois remains to be seen. There’s now a conflict amidst the districts, and one of the chief functions of the illinois supreme court is to resolve conflicts amidst the appellate courts. Remain tuned.