Beruflich Dokumente
Kultur Dokumente
)
PAMS ACADEMY OF DANCE/FORTE ARTS ) Appeal from the Circuit Court of the
CENTER, ) Thirteenth Judicial Circuit, Grundy
) County, Illinois
Plaintiff-Appellee, )
) Case No. 16-LM-155
v. )
) Circuit Judge: Sheldon Sobel
)
CALLIE MARIK, ) Appeal from Order dated June 28, 2017
) Certified Question granted November 8,
Defendant-Appellant. ) 2017
)
Kenneth J. Vanko
Emily L. Langhenry
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
langhenry@ccmlawyer.com
I. Introduction .........................................................................................................................1
Steven Greenhouse, Noncompete Clauses Increasingly Pop Up in Array of Jobs
(June 8, 2014), THE NEW YORK TIMES ..........................................................................................1
BHB Investment Holdings, LLC v. Ogg, No. 330045, 2017 WL 723789
(Mich. Ct. App. Feb. 21, 2017) .....................................................................................................1
II. Statement of Facts ...............................................................................................................2
III. Statement of the Certified Questions .............................................................................4
Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL App (3d) 140338 ..................................4
Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871 ..........................................................4
IV. Statement of Reasons for Granting the Application ....................................................4
A. The proposed questions concerning post-employment restrictive covenants
are one of law, reviewable de novo. ..............................................................................4
De Bouse v. Bayer AG, 235 Ill. 2d 544 (1999) ...............................................................................4
Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871 ..........................................................5
Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52 (2006) .......................................................5
Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL App (3d) 140338. .................................5
Capstone Financial Advisors, Inc. v. Plywaczynski, 2015 IL App (2d) 150957 ...........................5
B. Substantial grounds for a difference of opinion exist on each proposed
question..............................................................................................................................5
Rozsavolgyi v. City of Aurora, 2017 IL 121048 .............................................................................5
Doe v. Sanchez, 2016 IL App (2d) 150554 ....................................................................................5
1. Illinois law requires temporal limits for any post-employment
restrictive covenant. .................................................................................................6
Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL App (3d) 140338 ..................................6
Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871 ..........................................................6
House of Vision, Inc. v. Hiyane, 37 Ill. 2d 32 (1967) .....................................................................6
Jefco Laboratories, Inc. v. Carroo, 136 Ill. App. 3d 793 (1st Dist. 1985) ......................................7
2. Governing contract construction rules suggest the need for certainty,
rather than malleability, of non-compete terms. ................................................7
Aqua-Aerobic Systems, Inc. v. Ravitts, 166 Ill. App. 3d 168 (2d Dist. 1988) .............................7
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Jefco Laboratories, Inc. v. Carroo, 136 Ill. App. 3d 793 (1st Dist. 1985). .....................................7
Citadel Inv. Group, LLC v. Teza Techs., LLC, 398 Ill. App. 3d 724 (1st Dist. 2010). .................8
Long v. Tazewell/Pekin Consol. Communication Center, 215 Ill. App. 3d 134 (3d Dist. 1991). 8
ONeil and Santa Claus, Ltd. v. Xtra Value Imports, Inc., 51 Ill. App. 3d 11 (3d Dist. 1977). ..8
3. Appellate case law from other States demonstrates clear disagreement
over how to interpret the not less than language preceding a temporal
limit. ............................................................................................................................8
Robinwood, Inc. v. Baker, 425 S.E.2d 353 (Ga. Ct. App. 1992) ................................................8,9
4. The burgeoning public policy debate concerning employment-based,
non-compete agreements amplifies the importance of the certified
questions ....................................................................................................................9
Conor Dougherty, How Noncompete Clauses Keep Workers Locked In (May 13, 2017) THE
NEW YORK TIMES ............................................................................................................................9
820 ILCS 90/1 et seq.......................................................................................................................9
HAW. REV. STAT. 480-4 .............................................................................................................9
UTAH CODE ANN. 34-51-101 .......................................................................................................10
State Call to Action on Non-Compete Agreements .......................................................................10
Labor Market Monopony: Trends, Consequences, and Policy Responses (October 2016) ........110
Mark Garmaise, Ties That Truly Bind: Noncompetition Agreements, Executive
Compensation, and Firm Investment, J. OF LAW ECON. & ORG. 27, no. 2:376-425 ..............11
Tradesman Intl v. Black, 724 F.3d 1004 (7th Cir. 2013) ............................................................11
C. Resolution of the proposed questions will terminate the underlying action. ...11
Illinois Supreme Court Rule 308(a) .........................................................................................12
Weber v. St. Paul Fire & Marine Ins. Co, 251 Ill. App. 3d 371 (3d Dist. 1993)........................12
V. Conclusion ..........................................................................................................................12
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I. INTRODUCTION
This application for leave to appeal concerns a case-dispositive issue of law. The
employment restrictive covenants lasting for not less than a certain time period
When the circuit court denied Mariks Section 2-615 motion to dismiss, it eliminated
the specific language that Mariks former employer used in crafting its restrictive
covenants. Those covenants, by their plain terms, last for not less than three years and
not less than five years from the date of Mariks termination. The circuit court held
that the covenants lasted for three and five years respectively. (C078).
This appeal presents questions that will resonate far beyond the specific context of
this action. The use of employee non-compete agreements has proliferated, extending
not just to young dance instructors like Marik, but to camp counselors and college
students teaching young tots how to swim. See Steven Greenhouse, Noncompete Clauses
Increasingly Pop Up in Array of Jobs (June 8, 2014), THE NEW YORK TIMES (reciting story of
Ogg, No. 330045, 2017 WL 723789 (Mich. Ct. App. Feb. 21, 2017) (affirming order
supervisor at Goldfish Swim School who earned $12.50 per hour). Employees who sign
specialized economy, the very presence of a disabling career restraint (even when not
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To that end, Marik seeks a determination that post-employment restraints must have
definitive durational limits, not ones that are mere suggestions. The certified questions
involve the interplay of black-letter restrictive covenant law and crucial contract
interpretation principles. For the following reasons, the court should grant Mariks
application under Supreme Court Rule 308(a) over the legal questions certified by the
Academy), sued its former employee, Marik, claiming she breached a Non-Disclosure
January 11, 2017 by filing a Section 2-615 Motion to Dismiss the Complaint. (C009-18).
Rather than brief that motion, Pams Academy filed a First Amended Complaint.
claim into Counts I and II and added a third cause of action for trade secrets
form of the Agreement as an exhibit, which had an effective date earlier than the
version of the Agreement that Pams Academy attached to the initial Complaint. (C028).
Aside from the date, though, the Agreement was identical in substance to that
Marik again moved to dismiss the entire action under Section 2-615. (C045-55). As
she did in her initial motion, Marik argued that the two restrictive covenants in the
Agreement, which formed the predicate for Counts I and II, contained indefinite
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durational limits. (C047-49). Marik advanced other arguments as to Counts I and II,
directed at the substantive overbreadth of the clauses rather than their indefiniteness.
(C049-52).
The Agreements restrictive covenants are contained in: (1) Paragraph 3, which
prohibits Marik from competing with Pams Academy for not less than five years
from her termination date; and (2) Paragraph 4, which prevents Marik from soliciting or
doing business with any teachers, students, and parents of Pams Academy for not less
than three years from the end of her employment. (C028). Opposing the Section 2-615
motion, Pams Academy disagreed with Mariks assertions that both Paragraphs 3 and
4 were indefinite and that they were unreasonable restraints under Illinois law. (C060-
65).
On June 28, the circuit court denied Mariks Section 2-615 motion as to Counts I and
II, finding the restrictive covenants lasted for periods of five and three years
respectively. (C078). The court also struck, as overbroad, Paragraph 7 of the Agreement,
(C078). Finally, the court dismissed Count III without prejudice and gave Pams
Academy until July 26, 2017 to file an amended claim for trade secrets
misappropriation. (C078). Pams Academy did not do so, meaning only Counts I and II
On August 8, Marik filed her Motion to Certify for Interlocutory Appeal Questions
Arising from Denial of Motion to Dismiss. (C079-123). After full briefing, the circuit
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court entered an Order on November 8 granting Mariks motion on each proposed
The circuit courts November 8 Order certified the following two questions for
(C155-56).
Marik has established each of the three conditions for a Rule 308(a) interlocutory
appeal. First, the certified questions embody pure issues of law, reviewable under a de
novo standard. Second, the questions engender substantial grounds for difference of
restrictive covenants. And third, a favorable resolution will end the action below, as no
A certified question under Rule 308(a) must involve a question of law that enables de
novo appellate review. De Bouse v. Bayer AG, 235 Ill. 2d 544, 550 (1999). Illinois law is
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clear. The validity of an employment-based restrictive covenant is a question of law.
Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, 12; Mohanty v. St. John Heart
Clinic, S.C., 225 Ill. 2d 52, 62 (2006); Prairie Rheumatology, 2014 IL App (3d) 140338, 11.
To that end, Marik seeks review over the degree of certainty as to post-employment
durational limits, not the application of unique facts to an award of injunctive relief. See
Capstone Financial Advisors, Inc. v. Plywaczynski, 2015 IL App (2d) 150957, 7 (citing
Mohanty and explaining the difference in the de novo and abuse-of-discretion standards
The Supreme Court of Illinois recently has reaffirmed the proposition that
substantial grounds for difference of opinion exist under Rule 308(a) where reviewing
courts have not addressed particular questions of law. Rozsavolgyi v. City of Aurora, 2017
IL 121048, 32. So Marik need not establish a direct conflict among intermediate
appellate courts for the Court to grant this application. See Doe v. Sanchez, 2016 IL App
directly applicable case law answered the question). The certified questions in this
appeal concern legal issues that are likely to arise beyond the specific context of this
lawsuit. Indeed those questions, over which reasonable people may disagree, address
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1. Illinois law requires temporal limits for any post-employment restrictive
covenant.
The Third District recently summarized the central rule of law that informs the
Rheumatology, 2014 IL App (3d) 140338, 12 (emphasis added). This rule derives from
the well-established rule-of-reason test that courts use to assess the enforceability of
In its June 28 Order, the circuit court found that the terms not less than five and
not less than three years meant five and three years. (C078). Put another way, it
interpreted both non-competition covenants in a way that established a firm time limit.
That was the case even though Pams Academy wrote the Agreement and chose specific
malleable terms concerning the restrictive covenants temporal scope. The circuit courts
compete lawlies in direct tension with the applicable black-letter principles described
in Prairie Rheumatology.
To be sure, this tension illustrates the difference of opinion between Mariks legal
argument and the circuit courts ruling. But so does the Supreme Court of Illinois
decision in House of Vision, Inc. v. Hiyane, 37 Ill. 2d 32 (1967), in which the Court held
that an employer could not enforce a non-compete clause without any time restriction
since it imposed unrealistic boundaries in time and space. Id. at 39. And the Court
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there would not sanction any equitable modification of the restraint, noting courts
always should consider the fairness of the restraint initially imposed. Id. Though
every non-compete case presents unique facts, the governing first principles matter.
They guide lower courts in resolving disputes. And just as critically, those principles
help lawyers advise their clients on what they can and cant do when evaluating new
career opportunities.
The certified questions address the need for clarity, certainty, and compliance with
black-letter rules. In future cases, the phrase not less than could be replaced by the
wording at least, or some other qualifier that reserves for the employer substantial
discretion in deciding for itself when the non-compete term ends. Can employers do
this consistent with the well-settled rule that a covenant must be reasonable as to
time, geographic scope, and activity? Jefco Laboratories, Inc. v. Carroo, 136 Ill. App. 3d
793, 799 (1st Dist. 1985). That is why Marik seeks leave to appeal. The Court should step
2. Governing contract construction rules suggest the need for certainty, rather
than malleability, of non-compete terms.
In the main, the difference of opinion on the particular legal issue is clear enough.
But below the surface lie several rules of contract construction that further inform the
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Courts strictly construe non-competition covenants. Citadel
Inv. Group, LLC v. Teza Techs., LLC, 398 Ill. App. 3d 724, 736
(1st Dist. 2010).
Applying these rules to the certified questions will enable the Court to determine
whether employers may reserve flexibility for themselves in drafting non-compete time
limits. The circuit courts ruling on Mariks Section 2-615 motion illustrates a divergent
view of contact interpretation. On the one hand (one which Marik advocated), those
principles amplify the need for an objectively ascertainable duration. On the other hand
(one the circuit court embraced), courts may step in, modify contracts, and import a
3. Appellate case law from other States demonstrates clear disagreement over
how to interpret the not less than language preceding a temporal limit.
In opposing Mariks Section 2-615 motion, Pams Academy identified one out-of-
state case that validates the substantial ground for difference of opinion over the
Inc. v. Baker, 425 S.E.2d 353 (Ga. Ct. App. 1992). There, the court adopted a variant of the
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reasoning Pams Academy invoked, in essence holding that a non-compete term of not
Baker was a 4-3 decision. For its part in assessing the not less than two years
language, the dissent stated that the majority resort[ed] to a less than commonly
accepted vernacular phrase interpretation. Id. at 357. This is precisely the argument
Marik advanced: that reading terms out of the Agreement in favor of a more certain one
violates generally applicable contract construction rules. The circuit court disagreed,
showing how reasonable people may disagree over the application of those rules in
non-compete lawsuits.
The certified questions before the Court are a symptom of a larger problem. Non-
compete abuse is on the rise, so much so that it has generated prominent coverage in a
variety of media outlets. See, e.g., Conor Dougherty, How Noncompete Clauses Keep
Workers Locked In (May 13, 2017), THE NEW YORK TIMES (documenting proliferation of
States across the political spectrum reflect policymaker concern over abuse. Illinois, for
its part, recently advanced incremental reform, banning non-compete contracts for low-
wage workers under the Freedom to Work Act. 820 ILCS 90/1 et seq. Hawaii now bans
non-compete agreements for technology employees. HAW. REV. STAT. 480-4. And last
year, Utah significantly curtailed the use of non-competes and allowed employees to
1In Baker, the defendant admitted in her answer that not less than two years meant two years. Id. at
355-56.
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seek their legal fees if a firm tried to enforce an overbroad contract. UTAH CODE ANN.
34-51-101, et seq. As a reflection of these recent legislative changes, the White House
even issued its State Call to Action on Non-Compete Agreements, advocating for the States
practices policy objectives was a call to prevent just what occurred below: the ex post
beyond any one narrow dispute. Indiscriminate use of restrictive covenants raises
important questions of economic liberty, the freedom to compete, and wage stagnation.
Just last year, in fact, the Council of Economic Advisers cited prior studies of how firms
reasons to use a non-compete contract and the empirical data on their benefits:
Council of Economic Advisers Issue Brief, Labor Market Monopsony: Trends, Consequences,
and Policy Responses (October 2016), at p. 9 (emphasis added). To that end, peer-
reviewed research undermines the claim that non-competes are necessary for firms to
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invest in employees and grow their businesses. See Mark Garmaise, Ties That Truly Bind:
& ORG. 27, no. 2:376-425 (concluding that research-and-development investment within
publicly-traded firms was lower, not higher, in areas where non-competes were
enforceable).
perhaps most impacting cases that never even get litigated. See Tradesman Intl v. Black,
724 F.3d 1004, 1018 (7th Cir. 2013) (Hamilton, J., concurring) (stating that [i]n the many
cases that will never get to court, or where employees will be deterred even from trying
to leave, the employer benefits from the in terrorem effects of the oppressive and overly
broad covenants.). The relatively few cases like this case with a shifting, malleable
durational guidepost does not suggest that this action is an outlier; it only suggests that
and actual legislative reform demonstrate the need for this Court to intervene. Non-
compete law still stems largely from judicial decisions. The core legal principles that
form the certified questions, to a great extent, lie in tension with one another. A
resolution of those questions will guide future litigants and judges in evaluating
articulate any ascertainable durational limit, will render the operative provisions of the
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Agreement unenforceable. Although Pams Academy filed a separate cause of action in
the First Amended Complaint for trade secrets misappropriation, the circuit court
dismissed that claim. (C078). Pams Academy chose not to amend its pleading.
Therefore, if this Court answers either or both certified questions in the negative, the
disposition will materially advance the ultimate termination of the litigation in its
Even though Marik filed a Counterclaim for Declaratory Judgment, that cause of
action only sought a determination that the non-competition covenants were invalid
and unenforceable. (C136-40). A favorable resolution of the certified questions will moot
that counterclaim entirely and leave nothing for the circuit court to do but dismiss the
entire action. See Weber v. St. Paul Fire & Marine Ins. Co, 251 Ill. App. 3d 371, 372 (3d Dist.
1993) (stating that to maintain a declaratory judgment claim, the court must have an
the case.).
V. CONCLUSION
For the foregoing reasons, Marik requests that this Court grant her leave to appeal
Respectfully submitted,
12
Kenneth J. Vanko
Emily L. Langhenry
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
langhenry@ccmlawyer.com
Counsel for Defendant-Appellant
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PROOF OF SERVICE
The undersigned, being duly sworn on oath, states that she served this Application
for Leave to Appeal on the following:
Zachary B. Pollack
Sabuco, Beck, Hansen, Massino & Pollack, P.C.
950 Essington Road, Suite B
Joliet, Illinois 60435
via e-mail and by depositing the same in the United States mail on December 6, 2017
with proper postage prepaid.
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