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


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).

The court next considered Gunderson’s argument that the employment contract is not legally enforceable. Among other things, the majority wrote, restrictive covenants must give the employee adequate consideration to support the covenant. In post-employment contracts like Gunderson’s, they wrote, caselaw says continued employment can only count as that consideration if it is truly adequate — generally meaning a duration of two years or more — because of the possibility that at-will employment will mean a quick, causeless firing. Gunderson’s employment continued for only seven months, the court pointed out, and the fact that she resigned didn’t matter under Mid-Town Petroleum, Inc. v. Gowen, 243 Ill. App. 3d. (1993).

For that reason, the court wrote, there was no need to consider whether Brown’s case presented genuine issues of material fact. And for the same reason, Gunderson was not entitled to claim attorney fees under the voided employment contract. Thus, the majority said, the trial court’s decision to grant summary judgment stands.

However Judge Daniel Schmidt dissented, saying he believes seven months of continued employment could be adequate consideration under some circumstances. Importantly, he disagreed with the majority’s interpretation of Mid-Town, in which an employee also resigned after seven months with the new employer. In that case, he wrote, the facts differed considerably because the employee had been promoted as an incentive to sign a post-employment restrictive covenant, and quit after the promotion was later rescinded:

“To hold, as the majority does here, that an employee can void the consideration for any restrictive covenant by simply quitting for any reason renders all restrictive employment covenants illusory in this state. They would all be voidable at the whim of the employee.”

Because he also feels there are genuine issues of material fact at hand, Judge Schmidt wrote that he would prefer to reverse and remand the case.

Lubin Austermuehle has an active practice in Chicago restrictive covenant litigation, in which we represent employers, employees and other parties seeking to protect their business interests and rights. In fact, we handle all types of breach of contract lawsuits in Illinois, including non-competition clauses, shareholder disputes and real estate litigation. Click here to see a summary of some of the cases we have litigated. Based in Chicago and Oakbrook Terrace, Ill. near Oak Brook, Joliet, Aurora, Elgin, Naperville and Wheaton, we handle business disputes throughout the state of Illinois as well as in Indiana and Wisconsin. If you need an experienced attorney’s help with your own business dispute and you’d like to learn more, you can contact us online to set up a consultation today.

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