Totality of Circumstances

Totality of Circumstances in Enforcement of Non-Competition Agreements

As we said in our discussion of “legitimate business interests” when analyzing whether a non-competition agreement can be enforced in Illinois here, business people and companies that find themselves threatened with or actually in litigation to enforce post-employment non-competition agreements, and their close cousins, non-solicitation agreements, should make every possible effort to settle matters before litigation ensues or progresses.

Once litigation ensues, the temptation will be strong for a plaintiff to attempt to establish early on in a case that a particular post-employment restriction is per se reasonable, rather than per se unreasonable. The scenario of this tempting opportunity can arise in the context of a motion to dismiss by a defendant seeking to avoid enforcement of the post-employment restraint.

Taking the extreme trade secret misappropriation scenario we present in our discussion of “legitimate business interest” here, an employer-plaintiff might be tempted to advance various appealing arguments in response to a defendants’ motion to dismiss, with the strategic goal of obtaining a ruling by the court that post-employment restraint is reasonable as a matter of law.

For example, it might be intuitively appealing for the plaintiff to argue that even if the post-employment restraint lacks facts like geographic or time limitations, despite those shortcomings, the court should find the provision reasonable as a matter of law, because (1) plaintiff has a legitimate business interest in enforcing a non-solicitation clause against a former employee who acquired trade secrets and subsequently tried to use them for his own benefit; (2) the provision does not present an undue hardship to the defendant guilty of misappropriation of a trade secret, because it expressly allows him to compete with the employer for business anywhere in the world, except for the employers’s existing customers for a period 1 year, and (3) the clause is not injurious to the public because it does not restrain competition because it only seeks to maintain the employer’s hard-earned customer base.

Even against the foregoing backdrop, while an Illinois court may well deny a defendant’s motion to dismiss, an Illinois court will also be duty bound by Illinois law on the enforceability of post-employment restraints. Illinois law makes it extremely difficult if not impossible not only for a defendant to prevail on a motion to dismiss at an early stage in the case, but equally impossible for a plaintiff to obtain a ruling in the denial of a defendant’s moisten to dismiss that finds the restraint provision to be reasonable.

It is almost impossible to prove at an early stage in a such a case that a post-employment restraint is categorically (per se) reasonable (or per se unreasonable) as a matter of law. Applicable Illinois law says that resolving whether a post-employment restraint is reasonable and thus enforceable, depends on the totality of the circumstance, which necessarily require development of the specific facts of each individual case, which in turn almost always must be developed in pre-trial discovery, which requires time and money.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting non-compete, trade secret and restrictive covenant lawsuits. We are committed to fighting for our clients' rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated non-compete and trade secret and covenant not to compete cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.

Client Reviews
I was referred to Peter Lubin from someone in the car business to handle a law suit. From the moment I made the appointment Peter and his staff were outstanding. This wasn't an easy case, most lawyers had turned me down. However, Peter took the time to meet with me and review everything. He took on the case, and constantly communicated with me about updates and case information. We beat this non-compete agreement case in record time. I would use him again and recommend him to my closest family and friends. 5 stars is not enough to thank him for his service. Sebastian R.
I worked on two occasions with Peter Lubin and his staff. They took their time with me and discussed each and every item in detail. The group makes you feel like you are part of the family and not just another hourly charge. I recommend Peter to anyone who asks me for a referral. If you are looking for a top notch attorney at a reasonable rate, look no further than Lubin Austermuehle. Kurt A.
Excellent law firm. My case was a complicated arbitration dispute from another state. Was handled with utmost professionalism and decency. Mr. Peter Lubin was able to successfully resolve the case on my behalf and got me a very favorable settlement. Would recommend to anyone looking for a serious law firm. Great staff and great lawyers! Albey L.
I have known Peter Lubin for over 30 years. He has represented me on occasion with sound legal advice. He is a shrewd and tough negotiator leading to positive outcomes and averting prolonged legal hassles in court. He comes from a family with a legal pedigree and deep roots in Chicago's top legal community. You want him on your case. You need him on your opponents case. He won't stop fighting until he wins. Christopher G.
Peter was really nice and helpful when I came to him with an initial question about a non-compete. Would definitely reach out again, recommended to everyone. Johannes B.