Tag Archives: restrictive covenant

Enforcing Restrictive Covenants – the Impact of Fifield v. Premier Dealer Services, Inc.

Contributed by Julie A. Proscia

An employer’s ability to enforce post-employment restrictive covenants (for example, a restriction on a former employee’s ability to compete against the employer after the employee’s employment ends) has been and continues to be a much litigated topic.  The incessant litigation has, however, resulted in the creation of a few “standards” that employers should be aware of in drafting and enforcing restrictive covenants.  An Illinois Appellate Court’s decision in Fifield v. Premier Dealer Services, Inc. serves as a reminder of the developing standards and drives home the point that “continued employment” can be adequate consideration for a restrictive covenant, but that employment better last at least two years!

Fifield involves a plaintiff who was employed by Great American Insurance Company (“Great American”) and was assigned to work exclusively for a Great American subsidiary.  The subsidiary was sold to the defendant, Premier Dealer Services, Inc. (“Premier”), and Great American informed the plaintiff that his employment would end on October 31, 2009.  However, in late October, Premier offered the plaintiff a position contingent on his agreeing to an “Employee Confidentiality and Inventions Agreement” (“agreement”) that included a two-year post-employment non-solicitation and non-compete restriction.  The plaintiff was able to negotiate a provision into the agreement that stated the non-solicitation and non-compete would not apply if the plaintiff was terminated without cause during the first year of his agreement.

The plaintiff started working for Premier on November 1, 2009, and resigned three months later on February 1, 2010.  He then went to work for a competitor and filed a declaratory judgment action seeking to have a court find that certain provisions, including the non-solicitation and non-competition provisions, are unenforceable for lack of consideration (i.e. the plaintiff is not getting “enough” in exchange for his agreement to not compete or solicit).  The trial court found in favor of the plaintiff on the non-solicitation and non-competition issue, and Premier appealed.  The Illinois Appellate Court adopted the trial court’s reasoning and affirmed the trial court’s decision.

Both Premier and the plaintiff made a number of arguments in support of their respective positions.  Premier’s primary argument was that the plaintiff was not employed at the time he signed the agreement, and, therefore, his “new employment” was adequate consideration.  This argument, however, was rejected by the court because the transition from Great American to Premier was essentially seamless (this was a significant blow to Premier’s case).  The Appellate Court also rejected Premier’s argument that the “one-year termination without cause” provision was adequate consideration.

The Appellate Court agreed with the plaintiff that he really never stopped working, so the purported “new employment” alone could not be adequate consideration.  The court recognized that Illinois courts’ have repeatedly held two years of employment to be adequate consideration to support a post-employment restrictive covenant.  The plaintiff was only employed for approximately three months.  The fact that the plaintiff resigned on his own accord had no impact on the conclusion that two years of continued employment is the “standard” for adequate consideration in post-employment restrictive covenant situations.  

In light of this “standard,” if a non-compete or non-solicit is critical to your business, you might consider offering “consideration” other than non-guaranteed, continuing employment for a current employee.  If guaranteed employment is not an option (such as through an employment agreement), cash or a bonus program can always be considered.

Lack of Protectable Interest in Patient Base Dooms Medical Employer’s Restrictive Covenant Case

Contributed by Jeff Glass

Employers who use restrictive covenants to protect their client base should take heed of the Illinois Appellate Court for the First District’s decision in Gastroenterology Consultants of the North Shore, S.C. v. Meiselman, M.D., et al.

In 1996, defendant Dr. Meiselman formed the plaintiff corporation with three other doctors. All agreed to non-competes that prohibited them for three years from soliciting the clinic’s patients within a 15 mile radius. Meiselman left in 2010 to join a nearby practice.  The clinic sued him and his new employer, seeking a preliminary injunction. 

The trial court denied the injunction on the grounds that plaintiff failed to establish a protectable interest Meiselman’s patients. 

On appeal, the court applied the test from the Illinois Supreme Court’s opinion in Reliable Fire Equipment v. Arrendondo.  Pursuant to Reliable Fire, a restrictive covenant is enforceable if: (1) it is no greater than necessary to protect the employer’s legitimate interest; (2) it does not unduly burden the employee; and (3) it does not injure the public. The court noted that the analysis is “unstructured” and requires consideration of the totality of the circumstances. 

The facts showed that, prior to forming the corporation, the defendant practiced for a decade in the area. After forming the clinic, he continued treating these patients.  He personally billed them, not the clinic.  The clinic did not help him with advertising or marketing. His compensation depended on his independent practice.  

Based on these facts, the appellate court held that the trial court did not abuse its discretion in holding that the plaintiff lacked a legitimate interest in the patient base and therefore was not likely to prevail on the merits.

Meiselman demonstrates that, even if restrictions are reasonable, the employer needs to show good reasons why it has an interest in the departed employee’s customer relationships. 

We recommend that employers review their agreements and revise them if necessary to have the employee acknowledge that:

  • he or she is being paid to develop customers and leads;
  • the employer is providing support for those efforts; and 
  • the employee understands that the relationships belong to the employer

In addition, document any marketing expenses, tech support, or other “back of the house” efforts that help the employee build his or her book of business.  Should the contract wind up in court, these measures will help establish that the customers belong to the company, too. 

On the other hand, if employees develop clients exclusively through their own efforts, bring a client base to the company, or are compensated on an “eat what you kill” system, Meiselman underscores the difficulty of establishing a protectable interest in that situation.  In that case, employers should consider alternate protections, such as a buy-out requirement, which compensates the employer without barring the employee from working with his or her customers.

Another Restrictive Covenant Upheld By Applying the Reliable Fire Analysis

Contributed by Jeff Glass

Another restrictive covenant has been upheld by applying the Reliable Fire decision. On July 17, 2012, the Illinois Appellate Court for the Fourth District issued its opinion in Zabaneh Franchises, LLC v. Walker, 2012 Ill.App. Lexis 579.  This is the second published  decision of an Illinois Appellate Court in the wake of Reliable Fire Equipment Co. v. Arrendondo, 2011 Ill. 111871 (December 2011). For our analysis of the first decision on the subject, the Insureone decision, please see our firm’s prior blog post.

In Zabaneh, the defendant was a tax preparer who worked for H&R Block. Every tax season, she signed an employment agreement that included a restrictive covenant barring her for two years from doing any tax preparation work for clients she had serviced while with H&R Block. Plaintiff Zabaneh acquired the H&R Block franchise including the rights under the employment agreement. In the trial court, the plaintiff filed a motion for temporary restraining order (TRO). The trial court denied the motion for TRO and also dismissed the complaint on the grounds that the restrictive covenant was a “contract of adhesion,” i.e., one which the plaintiff was required to sign as a condition of her employment and whose terms she had no opportunity to negotiate.

On appeal the appellate court, applying the Reliable Fire analysis, held that the enforceability of the restrictive covenant should be determined under a “three dimensional rule of reason” which requires analysis of (1) whether the restriction is no greater than required to protect the employer’s legitimate business interest; (2) whether it imposes undue hardship on the employee; and (3) whether it injures the public.  All underlying facts and particular circumstances are to be considered in balancing these factors.

Applying this analysis, the court reversed the trial court and found that the two-year prohibition on competition, which was limited to clients of the company whom the defendant herself had serviced, was a reasonable restriction which did not unduly burden the employee. The court further held that the lack of a geographic scope was not problematic. The court also held that the one year restriction on hiring plaintiff’s employees was reasonable. The court then remanded the case to the trial court for a hearing on whether the plaintiff was entitled to injunctive relief. 

The Zabaneh Franchises decision, when considered with the First District’s decision in InsureOne, is a favorable development for employer-side clientele.  It further clarifies that Reliable Fire requires courts to conduct a broad fact-based inquiry into the totality of the circumstances before ruling on the enforceability of a restrictive covenant. As a practical matter, this gives the employer more “ammunition” to use, and also makes it more difficult for an employee to obtain a quick legal ruling that a restrictive covenant cannot be enforced.

Please continue to check this blog for further developments in the law of restrictive covenants and unfair competition.