Trade Secrets & Employee Mobility

On December 1, 2011, the Illinois Supreme Court issued its opinion in Reliable Fire Equipment Company v. Arredondo, et al., which resolved several years of confusion over the appropriate standard for enforcing non-compete agreements in Illinois.

In December 2010, in Reliable Fire Equipment Company v. Arredondo, the Illinois Court of Appeals for the Second District directly addressed Sunbelt Rentals, Inc. v. Ehlers, a troublesome 2009 case from Illinois' Fourth District that rejected Illinois' longstanding requirement that an employer must have a legitimate business interest in order to enforce a non-compete agreement. According to the Court in Reliable Fire, restraints on trade have long been disfavored by the Courts and the "legitimate business interest test" remains an important "threshold question" which allows the Court to analyze "whether the employer has an interest other than suppression of ordinary competition." Thus, depending on the district in which they are located, Illinois employers may be subject to different standards for enforcement of non-compete agreements.

In October 2009, in Sunbelt Rentals, Inc. v. Ehlers, 333 Ill.Dec. 791, 915 N.E.2d 862 (Ill. App. Ct. 2009), an Illinois appellate court reexamined and rejected over thirty years of well-established precedent regarding the enforceability of restrictive covenants. Specifically, it rejected the "legitimate business interest" test long applied as a threshold issue by Illinois courts when deciding the enforceability of a restrictive covenant. Last week, in Steam Sales Corporation v. Brian Summers, the first Illinois Appellate District other than the Fourth District re-visited the issue of whether the "legitimate business interest" still applied.

So far, Illinois courts have not followed a 2009 Illinois appellate decision, Sunbelt Rentals, Inc. v. Ehlers, 333 Ill.Dec. 791, 915 N.E.2d 862 (Ill. App. Ct. 2009), which rejected the "legitimate business interest" test long applied as a threshold issue by Illinois courts when deciding the enforceability of a restrictive covenant.

As noted in a blog post in October 2009, in Sunbelt Rentals, Inc. v. Ehlers, 333 Ill.Dec. 791, 915 N.E.2d 862 (Ill. App. Ct. 2009), an Illinois appellate court reexamined and rejected over thirty years of well-established precedent regarding the enforceability of restrictive covenants. To date only one published decision, Aspen Marketing Services, Inc. v. Russell, No. 09 C 2864, 2009 WL 4674061 (N.D. Ill. Dec. 3, 2009), has cited Sunbelt. In that case, the Court noted its awareness of Sunbelt and its rejection of the legitimate business interest test, but applied that test anyway.

From the mid-1970s until a few weeks ago, Illinois law on enforceability of restrictive covenants was clear: employers seeking to enforce a restrictive covenant first had to establish that the covenant was necessary to protect either confidential information or a near permanent customer relationship - the two recognized "legitimate business interests" sufficient to support a restrictive covenant under Illinois law.

In late September 2009, the Illinois Fourth District Court of Appeal, in Sunbelt Rentals, Inc. v. Ehlers, determined that the "legitimate business interest" test was not supported by any decision of the Illinois Supreme Court. Accordingly, the Sunbelt court held that, in determining whether a restrictive covenant is enforceable under Illinois law, a court should evaluate only the time-and-territory restrictions contained therein. In doing so, the Fourth District Court of Appeals departed from the clearly established case law of all appellate courts in Illinois (and also previous decisions of the Fourth District).