The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

Remedies for Illinois Businesses When a Former Employee Competes
By Richard J. Nogal, Joelle T. Marasco and Elizabeth J. Boddy

As demand for profitability increases pressure for competitive position in the marketplace, businesses must protect their investments in proprietary information, customer relationships, and technology. When key employees join the competition, the former employer’s interests may be severely compromised. This article surveys causes of action arising from tort, contract and statute available to the employer seeking both damages and injunctive relief.

I. Actions Based In Tort

A. Breach of Fiduciary Duty: Loyalty and Good Faith

Under Illinois law, an employee owes a fiduciary duty to his or her employer. The duty has been defined as the "duty to treat the principal with the utmost candor, care, loyalty and good faith."1 Courts have construed the duty as imposing an obligation to inform the employer that the employee has established a rival business, to refrain from encouraging other employees to join the rival firm, and refrain from using the information and resources of an employer to help establish a competing enterprise.2 In general, an employee may plan and outfit a competing enterprise while still working for an employer, but may not commence competition.3

1. Breach of Fiduciary Duty as Grounds for Money Damages

A former employee was held to have violated the fiduciary duty owed to her former employer in Hill v. Names & Addresses, Inc..4 Hill had worked as a salesperson for NAI. On the night before she left NAI’s employment, Hill removed computer discs and copies of reports relating to NAI’s customers. Before her departure, Hill also solicited her assistant to join a competing firm while both were still employed by NAI. NAI sued Hill for breach of fiduciary duty. As a defense, Hill alleged that she was not paid all commissions owed to her.

Summary judgment was entered in favor of NAI and against Hill in the trial court. The appellate court affirmed. It held that Hill breached her duty of loyalty to NAI, and that, as a matter of law, she had violated her fiduciary duty by her "gross misconduct."5

Damages awarded to NAI were also affirmed on appeal. They included NAI’s lost profits, disgorgement of profits wrongfully realized by Hill’s new employer, and punitive damages.6 Hill also forfeited her right to unpaid commissions. The court found that one who breaches fiduciary duties has no right to compensation during the course of conduct adverse to the employer’s interest.7

2. Breach of Fiduciary Duty as Grounds for Injunctive Relief

Courts in Illinois have also been willing to issue injunctive and other relief where a former employee’s breach of fiduciary duty threatens irreparable harm to the employer. In Tie Systems v. Telcom Midwest, Inc.,8 an employee removed customer files from her employer one week before joining a competitor. The court found that the removal of customer files constituted a breach of the former employee’s fiduciary duty which justified enjoining the former employee from soliciting the former employer’s customers. The court stated, "A breach of confidentiality occurs when an employee acts in a manner inconsistent with the employer’s interest by surreptitiously copying or memorizing secret information for use after his termination in the solicitation of his employer’s customers. . . ."9 The trial court properly concluded that Tie Systems’ interest in the misappropriated information was protectable for purposes of awarding injunctive relief.10

An injunction was also issued in Affiliated Hospital Products, Inc. v. Baldwin,11 restraining the manufacture and shipment of products by a former employee using misappropriated confidential information. The injunction was held proper even though the former employee’s confidentiality agreement with the employer had expired. The fact that the employee acquired confidential information while he stood in a fiduciary relationship to the employer imposed a duty not to disclose it, apart from any express contract.12

3. Higher Fiduciary Standard for Officers and Directors

While a corporate employee may plan and outfit a competing business while still working for the employer, corporate officers stand on a different footing and may not hinder the corporation’s business.13 Corporate officers owe a fiduciary duty of loyalty to their corporate employer to refrain from (1) actively exploiting their positions within the corporation for their own personal benefit, or (2) hindering the ability of the corporation to continue the business for which it was developed.14 The resignation of a corporate officer will not sever liability for transactions begun during the existence of the relationship or founded on information acquired during the relationship with the corporation.15

Breaches of fiduciary duty by corporate officers or directors creating a competitive enterprise have formed the basis for the award of injunctive relief in past Illinois cases.16 For instance, in Preferred Meal Systems v. Guse,17 the plaintiff alleged that its highest ranking officers used their positions to form a competing company. They started planning the rival company while still employed by Preferred, and failed to advise Preferred or its parent company of their plan. The officers had access to confidential information, including customer lists, costs and pricing strategies. The industry was competitive, but many of Preferred’s customers had been doing business with Preferred since its inception. The officers contacted Preferred’s customers about doing business with the rival company before their departure took place. Once they made their exit, Preferred sought to enjoin them from engaging in competitive activity with Preferred’s customers, alleging breach of contractual covenants not to compete and breach of fiduciary duty. The trial court declined to find a protectable interest for purposes of enforcing the covenants, because many of Preferred’s customers were in the public sector.18 The trial court also refused to enjoin two of the officers from operating the competing corporation despite obvious breaches of fiduciary duty, finding that potential harm to the new competitor outweighed the benefit to Preferred.19

The appellate court, first district, reversed on both grounds. It held that the trial court’s failure to enjoin all the officers and the competing corporation was an abuse of discretion.20 The court found a protectable interest in the corporation’s clients, despite the fact that they were public sector customers, which justified the enforcement of restrictive covenants.21 The appellate court also found that the harm to Preferred resulting from the defendant officers’ breaches of fiduciary duty warranted an injunction, and the interests of the competing company did not outweigh Preferred’s interest in obtaining that relief.22

4. Minority Shareholders of a Closed Corporation Owe Similar Duties of Loyalty and Good Faith.

Minority shareholders in a closed corporation also owe fiduciary duties to the corporation and their fellow shareholders, which may be breached by operating a competing business.23 The principle was established in Hagshenas v. Gaylord,24 where the plaintiff maintained his ownership interest in a closed corporation after he resigned as a director and officer to form his own competing business. Following his resignation, the plaintiff solicited the customers and employees of his former employer. The appellate court found that these actions constituted a breach of fiduciary duty, holding that as a shareholder in a closed corporation, the former officer owed fiduciary duties similar to that of partners.25

B. The Tort Of Unfair Competition

Misappropriation of an employer’s confidential and proprietary information also constitutes the tort of unfair competition under Illinois law.26 To prevail, the employer must show misappropriation of trade secrets or confidential information, and use of that information in furtherance of the former employee’s interest in a manner detrimental to the employer.27 The line between a company’s proprietary information and an employee’s specialized knowledge is not always easy to draw. The Illinois Supreme Court has attempted to distinguish the marketable skills of an employee from specific information affecting the company’s competitive advantage:

It is clear that an employee may take with him, at the termination of his employment, general skills and knowledge acquired during his tenure with the former employer. It is equally clear that the same employee may not take with him confidential particularized plans or processes developed by his employer and disclosed to him while the employer-employee relationship exists, which are unknown to others in the industry and which give the employer advantage over his competitors.28

C. Tortious Interference With Business Relationships

The elements of tortious interference with business relations under Illinois law include: (1) valid business expectancy by the plaintiff; (2) defendant’s knowledge of the expectancy; (3) defendant’s intentional and unjustified interference which prevents the realization of the expectancy; and (4) damages to the plaintiff as a result of the interference.29 In E.J. McKernan Co. v. Gregory,30 former employees were found liable for tortious interference with the plaintiff’s customer relationships. The plaintiff was awarded lost profits and punitive damages arising from the employees’ use of their former employer’s confidential information to divert business to their competing enterprise.31

II. Actions Based In Contract

A. Employment Agreements: Restrictive Covenants

Contractual covenants not to compete are strictly construed as a general rule. Some states have expressed a public policy against enforcement of such covenants as impermissible restraints on trade.32 In Illinois, however, contractual covenants prohibiting an employee, especially a salesperson, from competing with an employer have consistently been enforced courts where the employer has demonstrated a protectable interest in confidential information or customer relationships, and the covenants are reasonable in scope.33

1. Confidential and Proprietary Information

Illinois courts have found a protectable interest in confidential and proprietary information where the information is so designated and the employer takes reasonable steps to protect it. In Office Electronics, Inc. v. Grafic Forms, Inc.,34 the president and chief operating officer of a paper form business had executed an employment agreement which barred him from engaging in any competing business within a fifty (50) mile radius for a period of one year. The president had knowledge of and access to all of his employer’s customer and pricing information. After he resigned and formed a competing firm, his former employer obtained an injunction. On appeal, the second district found that the president’s knowledge of the former employer’s customer and pricing data was a protectable interest.35 It affirmed the trial court’s decision to enter an injunction, even though the employer presented no evidence of lost sales. Where the former employee’s conduct threatened irreparable harm to the employer’s interest, the trial court was not required to await actual injury before awarding injunctive relief.36

In Shorr Paper Products, Inc. v. Frary,37 a salesman signed an agreement prohibiting him from competing with his employer for one year after termination of employment. The salesman was familiar with the employer’s customer needs and with its major accounts. The trial court denied an injunction, but the second district reversed. The appellate court found a protectable interest in proprietary information sufficient to warrant injunctive relief.38 Again, no proof of actual injury was required; where the employee created a situation which threatened immediate harm to the employer’s competitive interests, irreparable harm was presumed.39

Likewise, in Millard Maintenance Service Company v. Bernero,40 a janitorial contractor executed a restrictive covenant with his employer that prevented him from competing for a period of two (2) years after termination. The employee gained knowledge of the employer’s customers and pricing policies, and then attempted to join a competitor. The employee initially argued that the covenant was unenforceable because it was not executed contemporaneously with the commencement of his employment. The appellate court followed the established Illinois rule that continued employment is adequate consideration for a post-employment covenant not to compete.41 The appellate court held that the former employer’s pricing formula and customer information were protectable interests which supported the issuance of injunctive relief against the former employee.42

2. Customer Relationships

Illinois courts also recognize a protectable interest in customer relationships, separate from the interest in confidential information, which justifies enforcement of restrictive covenants. The analysis for finding a protectable interest in customer relationships consists of a two-prong test wherein the employer must establish 1) a near-permanent relationship with its customers, and 2) but for his or her employment, the former employee would not have had contact with the employer’s customers.43 The employer’s relationship with its customers need not be exclusive in order to establish a protectable interest.44 What constitutes a "near permanent relationship," however, has been the subject of much discussion in the cases.

a. The Seven Factor Test

Whether a near permanent relationship exists has traditionally been determined in light of seven factors: 1) the length of time required to develop the clientele; 2) the amount of money invested to acquire clients; 3) the degree of difficulty in acquiring clients; 4) the extent of personal customer contact by the employee; 5) the extent of the employer’s knowledge of its clients; 6) the duration of the customer’s association with the employer; and 7) the continuity of the employer/customer relationships.45

The seven factors have been considered in numerous cases. For example, in A-Tech Computer Services, Inc. v. Soo Hoo,46 the employer was in the business of selling computer hardware and maintenance services. The defendant had been a co-owner and salesperson for the employer, and had executed a restrictive covenant prohibiting him from soliciting A-Tech’s clients for a period of two years. The former employee began actively soliciting A-Tech’s customers in violation of the non-solicitation agreement following his departure from the company. In seeking an injunction, A-Tech established that its clients were difficult and expensive to obtain, that the plaintiff developed an in-depth understanding of its customer’s computer needs, and that it made a substantial investment of time to develop each customer relationship. The court in A-Tech recognized that an employer has a valid interest in protecting its long-standing client relationships against the subterfuge and sabotage of former employees.47 The court found A-Tech’s interest in its customers sufficient to warrant injunctive relief enforcing the non-solicitation agreement.48 The court stated: "Once a protectable interest is established, irreparable injury to the plaintiff is presumed if the interest remains unprotected."49

b. The "Nature of the Business" Test

Recently, some courts have applied a "nature of the business" test for near-permanency in lieu of the seven factor test.50 Under those cases, near-permanent relationships are more likely to occur in the context of professional or pseudo-professional businesses than in sales-oriented ones.

In Office Mates 5 North Shore v. Hazen,51 the plaintiff company was in the business of placing temporary office support personnel with clerical and secretarial skills. The plaintiff company did not develop its clientele over time, and in fact 50% of the business was on a one-time-only basis. In determining whether the company had a protectable interest in its customer base, the court found that the nature of the business did not lend itself to near-permanent relationships. It therefore found no protectable interest and properly refused to award injunctive relief.52

In the most recent decision addressing the issue, the third district found near-permanent customer relationships between a radio station and its advertisers and listeners under both the "nature of the business" test and the seven-factor objective test used by most courts.53 In Midwest Television, Inc. v. Oloffson, a disc jockey accepted employment with a competing station despite restrictive covenants in his employment contract. The business was a highly competitive one in which customer relationships were not exclusive. Because the skills of the disc jockey were specialized, the court found that the nature of the business was more "pseudo-professional" than sales oriented, and found a protectable interest under that test.54 The court went on to analyze the evidence under the seven-factor near-permanency test. The court found that the time and investment required to sustain long-term relationships, the company’s familiarity with its customer base, combined with the duration and continuity of the relationships gave rise to a protectable business interest despite the highly competitive nature of the industry.55

3. Material Breach of Contract by the Employer as a Defense

Employees often asset a material breach of contract on the part of the employer as an affirmative defense to excuse the former employee’s performance of restrictive covenants. In Wyatt v. Dishong,56 the Plaintiff employer operated a chiropractic clinic. The defendant was a chiropractor employed by the clinic pursuant to a written contract. The written employment contract provided terms of payment to the employee and that the agreement was terminable upon thirty (30) days notice by either party. The contract contained a non-compete clause that prohibited the defendant employee from engaging in chiropractic practice within 50 miles of the employer’s office for a period of five (5) years after termination of the employment relationship.

After execution of the written contract, the employee’s compensation plan was amended three times. On one occasion, certain elements of compensation were reduced by 400%, from 50% to 10% of x-ray and therapy income. The defendant employee subsequently left the plaintiff employer to form a competing chiropractic clinic in violation of the non-compete agreement contained in the written contract. The employer sued to enforce the covenant.

The defendant in Wyatt asserted as a defense to the action that amendment of the employee’s compensation plan relieved him of any obligation to comply with the non-compete agreement. The argument failed. The court in Wyatt held that a contract terminable at the will of either party can be modified at any time by either party as a condition of its continuance.57 The Wyatt court went on to find that changes in the employee’s compensation by the employer, even if a detriment to the employee, were not so substantial as to justify treating the employment agreement as if it were at an end.58 Accordingly, the trial court’s grant of injunctive relief enforcing the terms of the non-compete agreement was affirmed.59

A similar result was reached in Lempa v. Finkel.60 In Lempa, the plaintiffs leased a dry cleaning business to the defendants. As part of the transaction, the plaintiffs also executed a covenant not to compete, which provided that the plaintiffs would not engage in a dry cleaning business within five (5) miles of the leased dry cleaners. The defendants defaulted on a mortgage note executed with their option to purchase the dry cleaner from the plaintiff. The plaintiffs, based on the defendants’ breach of their payment obligations, began to operate another dry cleaner notwithstanding the covenant not to compete. The plaintiffs sued on the note, and the defendants counterclaimed for violation of the non-compete clause.

The Plaintiffs in Lempa argued that the defendants’ default on the note excused their obligations under the noncompete agreement. The court looked to "inherent justice" and found the non-compete agreement enforceable, reasoning that nonpayment did not constitute a breach substantial enough to discharge the plaintiffs’ duties under the covenant not to compete.61

B. Covenants Of Good Faith And Fair Dealing

Every contract governed by Illinois law has an implied covenant of good faith and fair dealing.62 Where a former employee’s conduct goes beyond mere breach of contract and enters the realm of bad faith, a cause of action is also available for breach of the common law covenants of good faith and fair dealing. An employer seeking recovery under this theory must plead and prove that it has performed all conditions required of it under the contract, that the employee breached his or her duties of good faith and fair dealing, and that the employer suffered damages caused by the breach.63

III. The Trade Secrets Act

The Illinois Trade Secrets Act64 protects technical and non-technical data, plans, processes, customer lists and other information which is sufficiently secret to derive economic value from nondisclosure or use by other persons, and is the subject of reasonable efforts to maintain its confidentiality. The Act provides for both injunctive relief65 and money damages66 as remedies for misappropriation of trade secrets. Factors considered in determining whether information constitutes a protectable trade secret include the extent the information is known outside the employer’s business, the extent the information is known by employees and others in the business, the extent of measures taken by the employer to guard the information, the value of the information to the employer and competitors, the effort or money spent in developing the information, and the ease or difficulty with which the information can be acquired or duplicated.67 To prevail under the Act, a claimant must plead and prove that the information sought to be protected was secret, was misappropriated, and used in the appropriator’s business.68 "Misappropriated" means acquired by improper means, rather than developed independently or obtained from a third source.69 Availability of public or lawful means of gaining trade secrets is no a defense where those means were not utilized.70

A customer list and customer preference information were protected as trade secrets in Elmer Miller, Inc. v. Landis.71 In that case, a men’s clothing store updated its customer list twice a year and kept files of customer names, addresses, measurements, preferred styles and fabrics, and other customer-specific information. It informed its employees that the information was confidential when they were hired and when they quit. The files were kept in a closed drawer with limited access.

Two sales employees left the company to form a competing enterprise. After their departure, the store owner discovered that some of the most recent customer information was missing. The owner sued and the trial court granted a preliminary injunction. The first district appellate court affirmed.72 It found that the customer list was sufficiently large to confer an economic benefit to the owner, and contained a high percentage of active repeat customers, making it valuable to a competitor. The files contained customized information on preferences, making it difficult for a competitor to reproduce. The clothing store had taken reasonable steps to maintain the secrecy of the information, and had made sufficient showing that the information was improperly taken. Under those facts, the clothing store demonstrated a protectable interest in secret information sufficient to enjoin the former employees from soliciting any of its customers.73


Business enterprises in Illinois can protect proprietary information and customer relationships by taking appropriate steps. Confidential information should be so designated where possible and safeguarded with limited access. Employment contracts should contain appropriately tailored restrictive covenants. Systems should be developed to collect and track information which documents the time, expense and activity invested in developing customer relationships and trade secrets. Finally, communicating company policy and expectations regarding confidentiality may help educate employees to avoid the consequences of breach.

1 LaSalle Bank Lake View v. Seguban, 937 F. Supp. 1309, 1324 (N.D. Ill. 1996).

2 Unichem v. Gurtler, 148 Ill.App.3d 284, 498 N.E. 2d 724 (1st Dist. 1986) (Former employee breached fiduciary duty owed to former employer as a matter of law by encouraging employees to leave former employer to join rival firm and failing to inform employer of establishment of rival business); See also, Cross Word Products, Inc. v. Suter, 97 Ill.App.3d 282, 422 N.E.2d 953, 957 (1st Dist. 1981).

3 Veco v. Babcock, 243 Ill.App.3d 153, 611 N.E.2d 1054 (1st Dist. 1993).

4 Veco v. Babcock, 243 Ill.App.3d 153, 611 N.E.2d 1054 (1st Dist. 1993).

5 571 N.E.2d at 1091.

6 Id.

7 571 N.E.2d at 1092. Accord, Smith-Shrader Company v. Smith, 136 Ill.App.3d 571, 483 N.E. 2d 283, 291 (1st Dist. 1985) (former employee who breached fiduciary duty owed to former employer forfeits his right to all compensation during period of breach).

8 203 Ill.App.3d 142, 560 N.E.2d 1080 (1st Dist. 1990)

9 560 N.E.2d at 1065.

10 560 N.E.2d at 1086.

11 57 Ill.App.3d 800, 373 N.E.2d 1000 (1st Dist. 1978)

12 373 N.E.2d 1006. Accord, Schulenberg v. Signatrol, 33 Ill.2d 379, 212 N.E.2d 865 (1965) (injunction affirmed restraining former employee from using documents secretly taken from former employer).

13 Veco v. Babcock, 243 Ill.App.3d 153, 611 N.E.2d 1054, 1059, (1st Dist. 1993); E.J. McKernan Co. v. Gregory, 252 Ill.App.3d 514, 623 N.E.2d 981(2d Dist. 1993).

14 Veco v. Babcock, 243 Ill.App.3d 153, 611 N.E.2d 1054, 1059, (1st Dist. 1993).

15 Veco; E.J. McKernan Co.

16 Veco v. Babcock; Preferred Meal Systems, Inc. v. Guse, 199 Ill.App.3d 710, 557 N.E.2d 506, (1st Dist. 1990).

17 199 Ill.App.3d 710, 557 N.E.2d 506, (1st Dist. 1990).

18 557 N.E.2d at 511.

19 557 N.E.2d at 515.

20 577 N.E.2d at 516.

21 553 N.E.2d at 514.

22 577 N.E.2d at 516.

23 Rexford Rand Corp. v. Ancel, 58 F.3d 1215(7th Cir. 1995).

24 190 Ill.App.3d 60, 557 N.E.2d 316 (2d Dist.1990).

25 Id.

26 Schulenburg v. Signatrol, Inc., 33 Ill.2d 379, 212 N.E.2d 865 (1965).

27 Prudential Insurance Company of America v. Sipula, 776 F.2d 157, 163 (7th Cir. 1985); Associates Financial Services Company, Inc. v. Mercantile Mortgage Company, 727 F.Supp. 371, 373 (N.D.Ill. 1989).

28 212 N.E.2d at 869.

29 E.J. McKernan Co. v. Gregory, 252 Ill.App.3d 514, 623 N.E.2d 981 (2nd Dist. 1993).

30 Id.

31 Id.

32 See, e.g., Cal.Bus.& Prof.Code, sec. 16600(1987); Colo.Rev.Stat. 8-2-113(1973).

33 Instrumentalist Co. v. Band, Inc., 134 Ill.App.3d 884, 480 N.E.2d 1273 (1st Dist. 1985) (upholding injunction prohibiting former salesperson from competing with magazine for two years); Shorr Paper Products v. Frary, 74 Ill.App.3d 498, 392 N.E.2d 1148 (2nd Dist. 1979)(upholding injunction prohibiting former salesperson from competing with packaging firm for one year); Office Electronics v. Grafic Forms, Inc., 56 Ill.App.3d 395, 372 N.E.2d 125 (2nd Dist. 1978)(upholding injunction prohibiting former employee from competing with business form producer for one year).

34 56 Ill.App.3d 395, 372 N.E.2d 125 (2nd Dist. 1978).

35 372 N.E..2d at 128

36 372 N.E.2d at 129.

37 74 Ill.App.3d 498, 392 N.E.2d 1148 (2nd Dist. 1979).

38 392 N.E.2d 1153.

39 Id.

40 207 Ill.App.3d 736, 566 N.E.2d 379 (1st Dist. 1990).

41 566 N.E.2d at 384.

42 566 N.E.2d at 385.


44 Instrumentalist Co. v. Band, Inc., 134 Ill.App.3d 884, 480 N.E.2d 1273 (1st Dist. 1985); Arpac Corporation v. Murray, 226 Ill.App.3d 65, 589 N.E.2d 640 (1st Dist. 1992) (shrink wrap manufacturer had a protectable interest in its customers supporting injunction to enforce non-competition agreement); PCX Corporation v. Ross, 168 Ill.App.3d 1047, 522 N.E.2d 1333 (1st Dist. 1988)(Computer hardware company had a protectable interest in its customers supporting injunction to enforce non-solicitation agreement); and A.B. Dick Co. v. American Pro-Tech, 159 Ill.App.3d 786, 514 N.E.2d 45 (1st Dist. 1987) (Reprographic firm had a protectable interest in its customers supporting injunction enforcing non-competition covenant).

45 LSBZ, Inc. v. Brokis, 237 Ill.App.3d 415, 603 N.E.2d 1240(2d Dist. 1992).

46 254 Ill.App.3d 392, 627 N.E.2d 21 (1st Dist. 1993),

47 627 N.E.2d at 26.

48 627 N.E.2d at 21.

49 627 N.E.2d at 27.

50 Midwest Television, Inc. v. Oloffson,___ Ill.App. ___, 699 N.E.2d 230(3d Dist. 1998); Lawrence & Allen, Inc. v. Cambridge Human Resources Group, Inc., 292 Ill.App 3rd 131, 685 NE 2nd 434 (2nd District 1997); Office Mates 5, North Shore v. Hazen, 234 Ill.App. 3rd 557, 599 NE 2nd 1085 (1st Dist. 1992).

51 234 Ill.App. 3rd 557, 599 NE 2nd 1085 (1st Dist. 1992).

52 Id.; See also, Lawrence & Allen, Inc. v. Cambridge Human Resources Group, Inc., 292 Ill.App. 3d 131, 685 N.E.2d 434(2d Dist. 1997).

53 ___ Ill.App. ___, 699 N.E.2d 230(3d Dist. 1998).

54 699 N.E.2d at 232.

55 699 N.E.2d at 235.

56 127 Ill.App.3d 716, 469 N.E.2d 608 (5th Dist. 1984)

57 469 N.E.2d at 611.

58 Id.


60 217 Ill.App.3d 417, 663 N.E.2d 158 (2nd Dist. 1996).

61 663 N.E.2d at 167.

62 J&B Steel Contractors, Inc. v. C.Iber & Sons, Inc., 162 Ill.2d 265, 642 N.E.2d 1215(1994); Louis v. Lexington Development Corporation, 253 Ill.App.3d 73, 625 N.E.2d 289 (1st Dist. 1993).

63 Id.

64 765 ILCS 1065/1, et seq.

65 765 ILCS 1065/3

66 765 ILCS 1065/4

67 Tie Systems, Inc. Illinois v. Telcom Midwest, Inc., 203 Ill.App.3d 142, 560 N.E.2d 1080 (1st Dist. 1990).

68 Noah v. Enesco Corp., 911 F.Supp.299 (N.D.Ill.1995); Composite Marine Propellers, Inc. v. Van Der Woude, 962 F.2d 1263 (7th Cir.1992).

69 Noah v. Enesco Corp., 911 F.Supp.299 (N.D.Ill.1995).

70Hexacomb Corp. v. GTW Enterprises, Inc., 875 F.Supp. 457 (N.D.Ill.1993).

71 253 Ill.App.3d 129, 625 N.E.2d 338 (1st Dist. 1993).

72 625 N.E.2d at 343.

73 Id.

Richard J. Nogal is the Managing Partner of Lillig & Thorsness, Ltd., Oakbrook. His practice is concentrated in business litigation. He received his Undergraduate Degree in 1978 and his Law Degree in 1981 from Northwestern University. He may be reached at

Joelle T. Marasco is an Associate at Lillig & Thorsness, Ltd., Oakbrook. Her practice is concentrated in employment law. She received her Undergraduate Degree in 1988 from SUNY-Buffalo and her Law Degree in 1991 from the University of Toledo.

Elizabeth J. Boddy is an Associate at Lillig & Thorsness, Ltd., Oakbrook.

Her practice is concentrated in commercial litigation. She received her Undergraduate Degree in 1977 from Augustana College and her Law Degree in 1992 from Northern Illinois University.

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