Restrictive Covenants

Clothing Retailer Sues Competitor and Former Employees Alleging They Stole Secret Designs

August 26, 2010 | Peter S. Lubin and Patrick Austermuehle

As Illinois trade secrets litigation attorneys, we were interested to see a trade secrets lawsuit arise out of the time-sensitive and competitive world of women’s fashion. As the Naples Daily News reported in July, Florida clothing company Chico’s FAS Inc. has sued competitor Cache Inc. and two former employees who moved to Cache, Rabia Farhang and Christine Board. Chico’s alleges that Farhang and Board shared designs from Chico’s White House/Black Market line with Cache, resulting in nearly identical spring and summer collections from the two brands. The lawsuit’s complaint includes exhibits of pictures of both collections. It accuses the women of breach of their nondisclosure agreements and legal duties, and Cache of inducing them to breach those agreements, and all defendants of tortious interference with contractual relations, misappropriation of trade secrets, unfair competition, theft, unjust enrichment and civil conspiracy.

According to the complaint in the case (PDF), which was filed in New York state court, Cache has not been financially successful in the past four or five years, during which time Chico’s White House/Black Market line has done well. Chico’s alleges that Cache tried to fix this by inducing Farhang and Board to leave Chico’s in the fall of 2009, taking their knowledge of design plans for 2010 clothing lines along with other trade secrets and confidential information. At Chico’s, Farhang and Board both participated in the designs of the 2010 lines, Farhang as a senior officer. Using the allegedly stolen designs, the complaint says, Cache saw an increase in sales in spring of 2010, and Chico’s alleges that Cache will use stolen designs in its fall line as well. Because of this, it requested preliminary and permanent injunctions stopping Cache from selling clothes from its spring, summer and fall lines, as well as a recall of the spring and summer lines. It also asked for financial damages and court orders protecting its trade secrets and confidential information.

Our Chicago business emergency lawyers believe this case is a good example of a situation in which swift action is necessary. If the allegations by Chico’s are true, its intellectual property and brand have already been somewhat diluted by Cache’s use of very similar designs in its spring and summer lines. This would be ongoing damage to the company that includes difficult-to-measure non-financial harm to its identity and customer loyalty, as well as actual financial damages from infringement. Furthermore, the tight schedules of fashion and retail companies mean that they bring out their fall lines in mid-summer, which means the court must take quick action on the July 29 lawsuit to stop the infringing on the fall line. This also means that Cache’s fiscal health could be in serious trouble if the count chooses to grant the injunction against the fall line and the recall order for the spring and summer lines. For both sides, this claim represents a legal emergency requiring quick action to protect their business.

Chicago Federal Judge Denies Injunction in Insurance Brokerage Restrictive Covenant Case

July 30, 2010 | Peter S. Lubin and Patrick Austermuehle

Our Chicago noncompete agreement lawyers were interested to read about a significant ruling in a covenant not to compete case. According to insurance industry journal National Underwriter Property & Casualty, a federal district judge for the Northern District of Illinois ruled in June that former employees of CRC Insurance Services Inc. may continue in their new jobs at Ryan Specialty Group Inc. while the courts hear the two companies’ legal dispute. The companies, both of which are specialty insurance brokers, are fighting over employees who left CRC in May to move to Ryan’s R-T Specialty of Illinois, a new company founded by Pat Ryan, the CEO of Aon Corporation and a Chicago philanthropist. The judge’s preliminary ruling means the employees can stay in their jobs at least until the lawsuit by CRC has been decided.

According to the article, the exodus started when Tim Turner resigned as co-president of CRC in January. In February, Ryan announced that it was starting RTS with Turner in the role of managing director. He was joined by a former outside counsel to CRC, Ed McCormack. CRC’s complaint alleges that McCormack solicited CRC employees to join RTS. In all, 120 employees made that switch, including 39 who had signed covenants not to compete. After a large group of resignations on May 4, CRC sued RTS to enforce employees’ agreements not to compete, not to solicit former colleagues or customers for two years, and not to disclose certain company information. RTS told the court it is taking steps to obey the confidentiality agreements, but disagrees with CRC about the non-compete agreement and the scope of the non-solicitation agreement.

In the ruling, the Chicago federal court declined to grant a preliminary injunction to CRC, which would have stopped all 120 employees from working at RTS or any other competitor. In the ruling, the court said allowing the employees to continue working at RTS will harm CRC, but declining to allow them to keep working would put RTS out of business and harm the livelihoods of the employees. Crain’s Chicago Business noted that CRC has also filed suit in Alabama and California.

This ruling is a major victory for RTS and its new employees. RTS is backed by the wealth of Pat Ryan, but it can’t do business if none of its new employees are allowed to work for it. As the judge noted in the article, even CRC agreed that RTS would not survive without the 120 employees at issue — 81 of whom do not have a non-compete agreement. By contrast, the judge noted that CRC would not go out of business for lack of this preliminary injunction. Rulings like this can be appealed, of course, and our Illinois emergency business litigation attorneys may be able to offer other options to clients in CRC’s situation. In fact, as a CRC spokesman said in the article, this is likely to be just the first step in a long dispute between the two companies.

How to Protect Your Company’s Trade Secrets, and Customer Lists — Our Chicago Business Attorneys Can Help You Draft and Enforce Covenants Not to Compete and Confidentiality Agreements and Pursue Litigation to Enforce Them If Necessary

June 15, 2010 | Peter S. Lubin and Patrick Austermuehle

Our Chicago covenant not to compete and trade secret attorneys can assist your company or business in drafting agreements to protect your business from rogue former employees who engage in unfair competition. Our Chicago business lawyers and Chicago business trial attorneys can file lawsuits seeking a TRO, injunction and actual damages to protect your business from employees who steal customer information and violate non-compete agreements. To see the types of cases our Chicago business law lawyers handle you can look at our website. To contact one of our Chicago business law attorneys, click here. You can also view our Chicago business attorneys listings in Super Lawyers.

Peter S. Lubin

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A Video Summarizing Some Legal Issues Relating to Non-Compete Agreements — Our Chicago Attorneys Prosecute and Defend Covenant Not to Compete Lawsuits

January 24, 2010 | Peter S. Lubin and Patrick Austermuehle

Lubin Austermuehle prosecutes and defends cases involving controversies over a covenant not to compete, or other restrictive covenants. Our Illinois restrictive covenant attorneys represent clients in active litigation over the validity and enforcement of these covenants, as well as helping to evaluate whether litigation may arise over such a contract. With more than 25 years of experience, we have handled these claims for businesses of every size, from large corporations to family-owned businesses, as well as individual employees. Based near Naperville, Aurora, Geneva, Lisle, Warrenville, Downers Grove, Wheaton, Wilmette, Evanston, Ill., and downtown Chicago, we represent clients throughout the state of Illinois, as well as in Indiana and Wisconsin. To learn more about how our Illinois covenant not to compete lawyers can help you, please do not hesitate to contact us through our Web site or call toll-free at 630-333-0333.

Scope of Injunctions Enforcing Restrictive Employment Covenants Must Be Clear, Fourth District Decides

November 13, 2009 | Peter S. Lubin and Patrick Austermuehle

Our Illinois noncompete clause attorneys recently noted an important case addressing the standards for a preliminary injunction in Illinois lawsuits over covenants not to compete. In Lifetec, Inc. v. Edwards, No. 4-07-0300 (Ill. 4th Nov. 6, 2007), Lifetec sued former salesman Peter Edwards for breach of three restrictive covenants in his employment contract. It also sued his wife, Carol Edwards, and new employer, Patterson Medical Supply Inc., for tortious interference with the contract. Trial court granted Lifetec a preliminary injunction, and Edwards filed the instant appeal.

Lifetec sells medical devices and products. When Edwards began working there as a salesman, he signed a contract agreeing not to:

Compete with Lifetec, or sell or lease the products he had been assigned during the last 18 months of his employment, or competing products, within the territory assigned to him in the last 18 months of his employment.
Directly or indirectly solicit purchase or lease of the product or competing products within the same territory.
Work as a distributor or sales representative for any manufacturer that was a client of Lifetec, or for a competitor that also handles the client’s products, within the last 12 months.

The restrictive covenant applied for 24 months after the employment agreement was terminated.

Edwards left Lifetec for Patterson, a larger competitor, after 10 years. According to the opinion, he knew the move could cause Lifetec to sue and gave Patterson a copy of the agreement, but Patterson said it would take care of him in any lawsuit. Several months later, he admitted to a former colleague that he was working for Patterson. Months later, Lifetec sued him for breach of contract and requested a preliminary injunction. At an evidentiary hearing, evidence was introduced that Edwards had solicited Lifetec customers, but he said all Lifetec customers were also Patterson customers because the bulk of Patterson’s business was from national contracts. On the basis of the evidence at this hearing, the trial court granted a preliminary injunction stopping Edwards from violating the contract.

Edwards appealed, asking only for a decision on whether there was enough evidence to support the granting of the injunction. The appeals court said there was. The question, the court wrote, was whether Edwards had used protectable confidential information gained at Lifetec for his own gain. Lifetec contended that its “open quotes” to buyers constituted protectable information, although not all open quotes necessarily resulted in sales. The court took it one step further, saying the way those quotes were calculated was the real confidential information, as the quotes themselves were not secret once submitted to customers. Edwards’ knowledge of the reasoning behind the bids could give Patterson an advantage in the competitive medical supply industry. The defendants’ arguments that Lifetec should have alleged that Edwards misappropriated its trade secrets also fail, the court wrote, since Lifetec is making no such claim. All of this is sufficient to raise fair questions of fact, the court said, so an injunction was proper until the merits of the case could be decided.

A special concurrence filed by Presiding Justice Robert Steigmann agreed with the outcome, but said the court was incorrect to use the “legitimate business interests” test. This test is three decades old, the justice wrote, but the Illinois Supreme Court had never embraced it and in fact failed to use it at all in its 2006 decision in Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 866 N.E.2d 85 (2006). Because of this, he wrote, the court should have stopped its analysis after finding that the time and territory restraints in the covenant were reasonable. The majority noted, however, that the parties made no argument on this basis.

Continued Employment for a Short Time Is Not Adequate Consideration for Post-Employment Restrictive Covenant, Appeals Court Decides

July 29, 2009 | Peter S. Lubin and Patrick Austermuehle

Lubin Austermuehle’s Illinois breach of contract litigation attorneys were pleased to see a split Illinois Third District Court of Appeal decision clarifying the circumstances under which a post-employment restrictive covenant is valid. The decision came in Brown & Brown v. Patrick Mudron, No. 03-CH-1363 (Ill. 3rd March 11, 2008), in which a Florida insurance company sued a former employee for breaching a restrictive covenant in her employment agreement.

Diane Gunderson, the employee, worked for a Joilet, Ill. company that was taken over by Brown & Brown. Brown asked Gunderson to sign a new employment agreement with them, and in fact, fired an employee who refused to do so. The agreement said Gunderson’s employment could be terminated any time for any reason and prohibited her from soliciting or servicing any of Brown’s employees for two years after ending her employment with the company. She signed the agreement, but resigned seven months later and went to work for a competitor. Brown sued, alleging that Gunderson had breached the restrictive covenant at her new job. The trial court granted summary judgment in favor of Gunderson because it couldn’t find any evidence that she had breached the covenant, and Brown appealed.

The majority started by disposing of a “choice of law” provision in the contract requiring all disputes to be resolved in Brown’s home state of Florida. Illinois law applies anyway, the court wrote, because Illinois has a greater interest in the case and moving it to Florida would be against Illinois public policy interests. International Surplus Lines Insurance Co. v. Pioneer Life Insurance Co. of Illinois , 209 Ill. App. 3d (1990).