                             Illinois Official Reports

                                     Appellate Court



             McInnis v. OAG Motorcycle Ventures, Inc., 2015 IL App (1st) 142644



Appellate Court         CHRIS McINNIS, Plaintiff-Appellee and Counterdefendant, v. OAG
Caption                 MOTORCYCLE VENTURES, INC., d/b/a City Limits Harley-
                        Davidson, Defendant-Appellant and Counterplaintiff and Third-Party
                        Plaintiff-Appellant, (Vroom Vroom, LLC, d/b/a Woodstock
                        Harley-Davidson, Third-Party Defendant-Appellee).



District & No.          First District, Fourth Division
                        Docket No. 1-14-2644



Filed                   June 25, 2015



Decision Under          Appeal from the Circuit Court of Cook County, No. 2014-CH-7557;
Review                  the Hon. Thomas R. Allen, Judge, presiding.



Judgment                Affirmed.



Counsel on              David G. Wix, Daniel W. Tarpey, and Kevin T. Mocogni, all of
Appeal                  Tarpey Wix LLC, of Chicago, for appellant.

                        Alan F. Block, of Block & Landsman, of Chicago, for appellee.



Panel                   JUSTICE COBBS delivered the judgment of the court, with opinion.
                        Presiding Justice Fitzgerald Smith concurred in the judgment and
                        opinion.
                        Justice Ellis dissented, with opinion.
                                             OPINION

¶1       A former employee brought a complaint for declaratory relief seeking a judicial
     determination that restrictive covenants in his employee agreement were unenforceable. The
     employer counterclaimed seeking injunctive relief against the employee and to enforce the
     restrictive covenants in the employment agreement. The employer appeals from the order of
     the trial court denying its motion for a preliminary injunction.

¶2                                         BACKGROUND
¶3       Chris McInnis (plaintiff) was employed as a salesman by OAG Motorcycle Ventures, Inc.,
     d/b/a/ City Limits Harley-Davidson (defendant). Defendant is a Harley-Davidson motorcycle
     dealership located in Palatine, Illinois. Defendant sells new and used Harley-Davidson
     motorcycles, parts and accessories, as well as Harley-Davidson apparel and gifts. Defendant
     also has a service department, storage capabilities, rider training and a rental department.
     Anthony “Ozzie” Giglio is the owner and the chief executive officer of the Windy City
     American Motor Group (WCAMG), a consortium of four Harley-Davidson dealerships in the
     Chicagoland area, including defendant.
¶4       Plaintiff first began employment with defendant on August 25, 2009. At that time, plaintiff
     had no experience selling motorcycles and went through defendant’s training program.
     Throughout plaintiff’s employment with defendant there were regular meetings for the entire
     sales staff. Plaintiff became one of the top salesmen for defendant. His compensation was
     comprised of a base salary of $18,000 plus sales commission.
¶5       In October 2012, plaintiff informed defendant that he was leaving defendant to work for
     Vroom Vroom, LLC, d/b/a Woodstock Harley-Davidson (Woodstock). In late October 2012,
     plaintiff reported to work at Woodstock. After one day at Woodstock, plaintiff contacted
     defendant to find out if his old job was available. Plaintiff had not been taken off defendant’s
     system for the one day he was gone. Giglio, concerned that plaintiff would leave again,
     informed plaintiff that as a condition of his employment, plaintiff was required to sign an
     employee confidentiality agreement (agreement) that included noncompetition clauses.
     Plaintiff signed the agreement on October 25, 2012.
¶6       The agreement states in pertinent part:
                  “1. Consideration.
                  Included in the mutual consideration acknowledged by the parties hereto, but
             without limitation, is an offer of employment with Company in an at-will employment
             relationship, and Employee’s exposure to Company’s and/or WCAMG’s proprietary
             and confidential information as its employee.
                                                  ***
                  4. Prohibitions Regarding Company’s and/or WCAMG’s Customers and
             Employees.
                  a. *** Employee agrees that during the term of his employment and for a period of
             eighteen (18) months thereafter, he shall not, either for himself or as a member, partner
             stockholder, director, employee or agent of any other entity or organization:
                      (i) accept employment with, be engaged as an independent contractor or
                  consultant for or otherwise perform any services for, any Harley-Davidson

                                                 -2-
                    dealership located within a radius of twenty-five (25) miles of any retail location of
                    (a) Company, *** (ii) directly or indirectly induce or influence any customer,
                    supplier or other person that has a business relationship with Company and/or
                    WCAMG to discontinue or reduce the extent of such relationship ***.”
¶7         After signing the agreement, plaintiff was rehired and worked as a salesman for defendant
       from October 25, 2012, until he voluntarily resigned on May 1, 2014, a period of 18 months.
       Upon rehire, defendant waived the 90-day trial period for plaintiff that new hires are required
       to complete to be eligible for benefits. From 2009 until 2012 no salesmen were subject to a
       confidentiality or noncompetition covenant. In June 2013, defendant started a policy that every
       salesman had to sign a noncompetition restrictive covenant.
¶8         Every Harley-Davidson dealership is assigned a dealer assigned territory (DAT) by
       Harley-Davidson Motor Company (HDMC), the corporate entity in Milwaukee, Wisconsin.
       There is no restriction preventing a dealership from pursuing potential customers in another
       dealership’s DAT.
¶9         All Harley-Davidson dealerships have a “Harley Owners Group” (HOG). This group
       consists of customers of that dealership. Doug Jackson, a member of Woodstock’s HOG,
       testified that Woodstock’s HOG information was disseminated to each group member and this
       included a roster of names and contact information. By contrast, Giglio testified that defendant
       kept its HOG information confidential.
¶ 10       Defendant’s customer information includes names, telephone numbers and email
       addresses. This information is stored in defendant’s password protected “Connect” computer
       system. Each salesperson has access to “Connect” for the customers with whom they have
       dealt; however, customer data is not shared with anyone outside of defendant’s dealership. The
       customer information is used for staying in touch with customers through direct mailings and
       emails, to generate sales and referrals.
¶ 11       Plaintiff maintained contact with his clients and potential clients by various means. He met
       clients at the dealership, at events, through referrals and his own social contacts. Plaintiff gave
       his cell phone number to clients and prospective clients in order to be available. In the summer
       of 2013, plaintiff was involved in an accident and could not be present at defendant’s
       dealership. He continued to sell motorcycles from his home utilizing his cell phone.
¶ 12       Defendant had a policy, disseminated to all employees, prohibiting cell phone use on the
       dealership floor during business hours. Plaintiff testified that he used his cell phone at the
       dealership on a frequent basis. He testified that he was never disciplined or warned against
       such practice. Tim Ryan, a former sales manager of defendant’s, testified that cell phone use
       was a necessary tool to connect with clients and that there were legitimate reasons why a
       salesman would use his cell phone to contact his customers.
¶ 13       During plaintiff’s employment from August 2009, to May 2014, he sold about 240
       motorcycles per year. Over that five-year period plaintiff sold about 1,200 motorcycles. He
       retained 179 client names, phone numbers and emails in his cell phone. Two of the names had
       a reference to a style of motorcycle.
¶ 14       Prior to plaintiff’s May 2014 departure from defendant’s employment, he was in contact
       with Woodstock starting in November 2013. Woodstock presented plaintiff with an
       employment contract on March 2, 2014. Plaintiff did not resign from defendant until May 1,
       2014, so that he could receive commissions owed him. He returned to Woodstock,


                                                    -3-
       commencing employment there on May 5, 2014. Plaintiff’s compensation at Woodstock is a
       base salary plus a bonus based upon the dealership’s overall performance. Plaintiff’s
       employment agreement provides indemnification for him in any litigation with defendant, the
       exception being if plaintiff misappropriates any confidential information from defendant.
¶ 15       On May 2, 2014, plaintiff filed a complaint in the circuit court of Cook County for
       declaratory judgment pursuant to section 2-701 of the Code of Civil Procedure (Code) (735
       ILCS 5/2-701 (West 2012)). In his complaint plaintiff alleged that there was not adequate
       consideration to support the noncompetition agreements between him and defendant and
       sought a judicial determination regarding their enforceability. Subsequently, defendant filed its
       answer and a counterclaim against plaintiff and a third-party claim against Woodstock. On
       May 28, 2014, the trial court heard defendant’s emergency motion for a temporary restraining
       order, which was denied. Thereafter, the parties engaged in expedited discovery in preparation
       for the hearing on defendant’s motion for preliminary injunctive relief. The hearing was held
       on July 31 and August 1, 2014. In addition to the testimony of the witnesses, the parties
       submitted several exhibits to the trial court.
¶ 16       At the evidentiary hearing, the parties focused on plaintiff’s cell phone, which contained
       179 client contacts. Defendant maintained that the information was highly confidential.
       Evidence was also presented at the hearing about the buying habits of Harley-Davidson
       customers. It was adduced that customers are loyal to the Harley-Davidson brand and that they
       often shop at multiple dealerships.
¶ 17       After arguments by counsel, the trial court denied defendant’s motion for a preliminary
       injunction and granted plaintiff’s motion for declaratory judgment. The trial court specifically
       found that the “tenure [sic] of the testimony was that Harley is a Harley is Harley is Harley.”
       The court commented regarding the affinity that Harley-Davidson customers have for the
       Harley brand and their loyalty to Harley and Harley products. With respect to the issue of
       consideration as it relates to enforceability of restrictive covenants, the trial court offered the
       following:
                   “The general proposition of law in Illinois is that a restrictive covenant, to be valid
               and enforceable must be reasonable. That’s the terminology. But before you consider
               whether it’s reasonable the Court has to make two determinations. First, whether the
               restrictive covenant is ancillary to a valid contract; and then secondly, whether the
               restrictive covenant is supported by adequate consideration. Here the restrictive
               covenant was clearly ancillary to a valid contract of employment. *** Now there has to
               be a determination of whether the restrictive covenant is supported by adequate
               consideration. *** [B]ecause these things all have individual facts, individual
               circumstances, and the totality of circumstances is definitely something the Court
               should look at, and as [a] matter of fact they’re obligated to.”
¶ 18       The trial court reasoned:
                   “[P]laintiff leaves, he works for one day at the other dealer, changes his mind and
               comes back, fearful that he might do it again, they give him a restrictive covenant. He
               signs the restrictive covenant, he agrees to the noncompete, and the operative time is
               October 25, 2012. He’s not employed for two years yet when he leaves again. He




                                                    -4-
              leaves this time May 5, 2014. So under Fifield,1 we don’t have adequate consideration
              for the restrictive covenant, and it’s subject to attack for that reason, on a very simple,
              narrow legal principle that is set forth in that case and has been common, and the
              Courts are aware of it. *** There can be other ways for [defendant] to enforce the
              covenant, even if it’s less than two years. And that would be if there is evidence that
              there was additional consideration, such as added bonus in exchange for this restrictive
              covenant, more sick days, some incentives, some kind of newfangled compensation
              that would be considered in the eyes of the law additional consideration that would then
              support the restrictive covenant as being less than two years.”
¶ 19       The trial court discussed the fact that defendant stated plaintiff’s employment was
       consideration and the waiver of the 90-day trial period was also additional consideration. The
       court found that employment, under the eyes of the law, is not considered additional
       consideration. Further, the court noted that testimony evidenced that plaintiff was “a hot
       commodity,” the greatest, the best, and he could sell anything, and thus, the court reasoned that
       there was no trial period needed for him. The court held:
                  “We’re going to lay down this pretty much guideline of two years. And unless you
              come up with some other newfangled consideration that can chip away at that and take
              it outside of that two year margin, then it’s not enforceable.”
¶ 20       The trial court then held that “there’s not adequate consideration in Fifield, and even if
       there was, I don’t think that [defendant] has met the burden that’s required, and it’s a high
       burden, for injunctive relief.” An order was entered on August 1, 2014, denying defendant’s
       motion for injunctive relief. Defendant brings this interlocutory appeal pursuant to Illinois
       Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010). For the reasons that follow, we affirm.

¶ 21                                           ANALYSIS
¶ 22        Defendant contends that the trial court erred in determining that as a matter of law the
       agreement between the parties was unenforceable. Specifically, defendant asserts that the
       restrictive covenants in the agreement are enforceable because they are supported by adequate
       consideration. He argues that the covenants were intended to prevent the unfair disclosure of
       confidential information by reasonably restricting plaintiff’s postemployment activities after
       leaving defendant’s employment for Woodstock. According to defendant, plaintiff was given
       ample consideration in exchange for his promise to abide by the restrictive covenants.
       Therefore, defendant maintains that the agreement is enforceable and the court erred in
       denying his motion for injunctive relief.
¶ 23        Plaintiff responds that under Illinois law, in order for restrictive covenants to be
       enforceable, employment must continue for a substantial period of time. He first points out that
       Illinois courts have repeatedly held that two years of continued employment is adequate
       consideration to support restrictive covenants. Plaintiff acknowledges that our courts have also
       stated that other additional consideration can lessen that two-year continued employment
       requirement. However, because the consideration here consisted of his employment and he
       was only employed for 18 months, it is less than is needed to establish adequate consideration.


          1
           Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327, holds that continued
       employment for two years or more constitutes adequate consideration.

                                                   -5-
       Thus, plaintiff contends that the trial court did not err in finding the agreements unenforceable
       and in denying defendant’s motion for preliminary injunction.
¶ 24        The following general principles apply to the issues presented in this appeal. The decision
       to grant or deny injunctive relief lies within the trial court’s sound discretion and its findings
       will not be disturbed absent an abuse of discretion. Mohanty v. St. John Heart Clinic, S.C., 225
       Ill. 2d 52, 62-63 (2006). The enforceability of a restrictive covenant not to compete in an
       employment contract, however, is a question of law, the determination of which we review
       de novo. Id. at 63.
¶ 25        The purpose of a preliminary injunction is to preserve the status quo pending a decision on
       the merits of the cause. Beahringer v. Page, 204 Ill. 2d 363, 379 (2003). It is an extraordinary
       remedy that should apply only in situations where an extreme emergency exists and serious
       harm would result if the injunction is not issued. Id. As a general rule, a preliminary injunction
       will only be granted where the plaintiff shows it (1) has a clearly ascertainable right that needs
       protection, (2) will suffer irreparable harm without the protection, (3) has no adequate remedy
       at law, and (4) is likely to succeed on the merits. Postma v. Jack Brown Buick, Inc., 157 Ill. 2d
       391, 399 (1993).
¶ 26        Illinois courts abhor restraints on trade. Prairie Eye Center, Ltd. v. Butler, 305 Ill. App. 3d
       442, 445 (1999) (citing Gillespie v. Carbondale & Marion Eye Centers, Ltd., 251 Ill. App. 3d
       625, 626 (1993)). Postemployment restrictive covenants are carefully scrutinized by Illinois
       courts because they operate as partial restrictions on trade. Fifield v. Premier Dealer Services,
       Inc., 2013 IL App (1st) 120327, ¶ 13 (citing Cambridge Engineering, Inc. v. Mercury Partners
       90 BI, Inc., 378 Ill. App. 3d 437, 447 (2007)). In order for a restrictive covenant to be valid and
       enforceable, the terms of the covenant must be reasonable. Prairie Eye Center, Ltd., 305 Ill.
       App. 3d at 445. It is established in Illinois that a restrictive covenant is reasonable only if the
       covenant (1) is no greater than is required for the protection of a legitimate business interest of
       the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to
       the public. Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 17. The courts
       consider the unique factors and circumstances of the case when determining the
       reasonableness of a restrictive covenant. Millard Maintenance Service Co. v. Bernero, 207 Ill.
       App. 3d 736, 745 (1990). However, before even considering whether a restrictive covenant is
       reasonable, the court must make two determinations: (1) whether the restrictive covenant is
       ancillary to a valid contract; and (2) whether the restrictive covenant is supported by adequate
       consideration. Fifield, 2013 IL App (1st) 120327, ¶ 13 (citing Lawrence & Allen, Inc. v.
       Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131, 137 (1997)). Absent adequate
       consideration, a covenant, though otherwise reasonable, is not enforceable. Id. ¶ 14 (citing
       Brown & Brown, Inc. v. Mudron, 379 Ill. App. 3d 724, 728-29 (2008)); see also Millard, 207
       Ill. App. 3d at 744.
¶ 27        As a general rule, courts do not inquire into the adequacy of consideration. Prairie
       Rheumatology Associates, S.C. v. Francis, 2014 IL App (3d) 140338, ¶ 14 (citing Curtis 1000,
       Inc. v. Suess, 24 F.3d 941, 945-46 (7th Cir. 1994)). However, postemployment restrictive
       covenants are excepted from the general rule. Adequacy of consideration is analyzed in the
       context of postemployment restrictive covenants because it has been recognized that a promise
       of continued employment may be an illusory benefit where the employment is at-will. Fifield,
       2013 IL App (1st) 120327, ¶ 14 (citing Brown, 379 Ill. App. 3d at 728). Under Illinois law,
       continued employment for a substantial period of time beyond the threat of discharge is

                                                    -6-
       sufficient consideration to support a restrictive covenant in an employment agreement. Id.
       Generally, our courts have held that continued employment for two years or more constitutes
       adequate consideration. Id. ¶ 19 (citing Diederich Insurance Agency, LLC v. Smith, 2011 IL
       App (5th) 100048, ¶ 15, and Brown, 379 Ill. App. 3d at 728-29).
¶ 28        Defendant contends that the trial court, in relying on this court’s decision in Fifield, erred
       in determining that the agreement was unenforceable as a matter of law. He posits that this case
       presents a unique factual situation that requires application of a fact-specific approach in
       determining the adequacy of consideration.
¶ 29        Before proceeding further, we deem it appropriate to discuss the facts and the holding in
       Fifield as well as the trial court’s application of relevant case law to the case at bar. In Fifield,
       the plaintiff had been employed by the subsidiary of an insurance company. Id. ¶ 3. In October
       2009, the insurance company sold that subsidiary to Premier. Id. In late October, Premier
       offered the plaintiff continued employment if he signed an “ ‘Employee Confidentiality and
       Inventions Agreement,’ ” which included nonsolicitation and noncompetition provisions. Id.
       Three months later, on February 1, 2010, the plaintiff informed Premier that he was resigning,
       which he did. Id. ¶ 4. Shortly thereafter, the plaintiff began work with his new employer. Id.
       The plaintiff and his new employer brought a declaratory judgment action against Premier,
       claiming that the provisions of the noncompetition and nonsolicitation agreement were
       unenforceable. Id. ¶ 5. Premier counterclaimed seeking injunctive relief. Id. The trial court
       granted the plaintiff’s motion for declaratory relief. Id. ¶ 6.
¶ 30        On appeal, Premier argued that the trial court erred in declining to enforce the
       nonsolicitation and noncompetition provisions in the parties’ agreement because there was
       adequate consideration. Premiere asserted that the consideration offered to the plaintiff was the
       employment itself; employment as the consideration enabled the plaintiff to avoid
       unemployment. Id. ¶ 9.
¶ 31        In its analysis, the appellate court noted that Illinois courts have repeatedly held that there
       must be at least two years or more of continued employment to constitute adequate
       consideration in support of a restrictive covenant. Id. ¶ 19. In affirming the trial court, the
       appellate court held that the period of time which the defendant had worked, slightly longer
       than three months, was “far short of the two years required for adequate consideration under
       Illinois law.” Id.
¶ 32        Fifield is equally important for what it says and for what it does not. After noting that
       Illinois courts have held steadfastly to the notion of two years or more as constituting adequate
       consideration, the court concludes that the approximately three months of employment in that
       case was insufficient. Notably, the court had no occasion to consider whether there was
       consideration other than the employee’s employment. Premier had stated that the employment
       was in fact the consideration. Further, we do not read Fifield as overruling or modifying
       Brown, which engaged in a fact-specific approach in determining consideration. What Fifield
       clearly holds is that employment alone, which is of less than two years duration, is inadequate
       consideration to support enforcement of a postemployment restrictive covenant.
¶ 33        In this case below, the trial court first set out the applicable law on the issue of enforcement
       of postemployment restrictive covenants. Expressly citing Fifield, the court noted that two
       years of employment is sufficient for adequate consideration. The court continued, noting that
       there could be other or additional factors that would override the two-year employment
       requirement. Those other factors, the court noted, could be an “added bonus in exchange for

                                                     -7-
       this restrictive covenant, more sick days, some incentives, some kind of newfangled
       compensation” that could be considered additional compensation that could support
       enforcement of the covenant. Although the court cited no particular Illinois cases in addition to
       Fifield, clear from the court’s comments was that it considered other factors that might support
       a finding of adequate consideration in the absence of the two years’ employment required not
       only by Fifield, but by those cases upon which Fifield relied. In any case, the trial court’s
       reliance on Fifield was appropriate.
¶ 34        Later in his brief, defendant asserts that Fifield did not abolish the fact-specific approach
       taken by Illinois courts in determining the adequacy of consideration. He maintains that a
       court’s review is not limited to application of a numerical formula in determining what
       constitutes substantial continued employment. In support, he invites this court’s attention to
       Woodfield Group, Inc. v. DeLisle, 295 Ill. App. 3d 935 (1998), and to LKQ Corp. v. Thrasher,
       785 F. Supp. 2d 737, 743 (N.D. Ill. 2011), cases in which, he maintains, the courts considered
       whether a defendant was terminated or resigned voluntarily to be a critical distinction in the
       adequacy of consideration determination. Noting that Woodfield Group and LKQ Corp.
       predate Fifield, defendant additionally invites this court’s attention to Novas, Dohr & Coll
       OB/Gyn Associates, S.C. v. Keith, No. 13-CH-07568 (Cir. Ct. Cook Co.), a circuit court
       ruling, and to Montel Aetnastak, Inc. v. Miessen, 998 F. Supp. 2d 694 (N.D. Ill. 2014),2 cases
       in which, defendant maintains, the courts engaged in a fact-specific approach and found
       sufficient consideration where employment had been for less than two years.
¶ 35        We agree with defendant that Fifield did not abolish a fact-specific approach to
       determining adequacy of consideration. Beyond the fact of employment, there were no other
       factors offered for the court in Fifield to consider. With respect to Woodfield Group and LKQ
       Corp., defendant correctly points out that both cases predate our holding in Fifield. We point
       out that, while perhaps persuasive, we are not bound by the rulings of our circuit court or by the
       holdings of our sister federal courts. Further, although there is dicta in Woodfield Group, 295
       Ill. App. 3d at 943, concerning the manner in which employment was terminated as a possible
       factor in the determination of adequate consideration, Illinois courts have since held that
       whether the former employee resigned or was terminated is irrelevant. See Brown, 379 Ill.
       App. 3d at 729; see also Diederich, 2011 IL App (5th) 100048, ¶ 15.
¶ 36        We additionally agree with defendant that the courts are not limited to a numerical
       formulation and we would further point out that the trial court here was not so limited. Had it
       been so, the court’s analysis would have ended upon learning that the plaintiff’s period of
       employment was for 18 months. Instead, the court engaged in a fact-specific approach to
       determine whether there was consideration, in addition to the 18 months employment,
       sufficient to enforce the covenant. We note in particular the court’s comment that “because
       these things all have individual facts, individual circumstances, and the totality of the
          2
            We note that there is a split among the federal district courts regarding the adequacy of
       consideration to support postemployment covenants not to compete. In Montel Aetnastak, Inc. v.
       Miessen, 998 F. Supp. 2d 694 (N.D. Ill. 2014), the court found consideration adequate to support
       enforcement of a postemployment covenant where an employee worked for 15 months and voluntarily
       resigned. Accord Cumulus Radio Corp. v. Olson, No. 15-cv-1067, 2015 WL 643345 (C.D. Ill. Feb. 13,
       2015); but see Instant Technology, LLC v. DeFazio, 40 F. Supp. 3d 989 (N.D. Ill. 2014) (holding
       covenants unenforceable where employees were employed for less than two years and their employers
       had provided no additional compensation beyond employment in exchange for the covenants).

                                                   -8-
       circumstances is definitely something the Court should look at, and as [a] matter of fact they’re
       obligated to.”
¶ 37       Defendant next contends that the trial court’s interpretation of Fifield as requiring two
       years of continued employment before a restrictive covenant is enforceable, regardless of the
       circumstances, misconstrues the context in which Fifield was decided, broadly expands its
       scope and ignores Illinois precedent which supports a fact-specific approach. In defendant’s
       view, the trial court wrongly interpreted Fifield to hold that no amount of consideration
       provided for the signing of an employee agreement is adequate absent the employee working
       for the employer for two years. Defendant misperceives the trial court’s interpretation of
       Fifield.
¶ 38       Based upon our review of the record, we believe that the trial court’s interpretation and
       application of Fifield to the facts in this case were appropriate. We reiterate, after first
       reviewing the general rules as set forth in Fifield, the court specifically commented that other
       consideration would take the case out of Fifield’s bright-line rule of two years’ continued
       employment. After considering all of the evidence, however, the court stated that it did not find
       other consideration.
¶ 39       Defendant argues that the situation addressed in Fifield and other similar cases, not cited by
       defendant, differ from the case at bar. In that regard, he points out that unlike the employee in
       Fifield, here, plaintiff was not an existing employee forced to sign an employment agreement
       under threat of termination, nor was he a new hire seeking to be employed for the first time.
       Plaintiff was, instead, a former employee who voluntarily resigned his position to accept a
       position with defendant’s competitor and was subsequently rehired by plaintiff.
¶ 40       We agree that plaintiff was not an existing employee, but was more akin to a new
       employee. The agreement here was offered as a condition of plaintiff’s employment. We find
       significant that language included in the agreement concerning consideration expressly stated:
       “[I]ncluded in the mutual consideration acknowledged by the parties hereto, but without
       limitation, are an offer of employment with Company in an at-will employment relationship
       ***.” Even so, defendant’s distinction here is without a difference. In Fifield, the defendant
       employer argued that because the employee was not employed by the defendant at the time he
       signed the agreement his employment was the consideration he received in exchange for the
       noncompetition agreement. In addressing the defendant’s argument, we found instructive the
       ruling in Bires v. WalTom, LLC, 662 F. Supp. 2d 1019, 1030 (N.D. Ill. 2009), which rejected
       the distinction between pre- and posthire covenants. Fifield, 2013 IL App (1st) 120327, ¶ 17.
       We find no basis upon which to depart from the reasoning in Fifield on this issue and defendant
       offers none.
¶ 41       Regarding the adequacy of consideration, defendant points out that the agreement was
       drafted specifically to address plaintiff’s situation, including his prior voluntary termination of
       employment to pursue employment with a competitor, and his desire to be rehired by
       defendant. Additionally, defendant points out, plaintiff was immediately provided the perks
       and benefits afforded to top salesmen after being rehired and was not required to undergo the
       90-day trial period that new hires at City Limits are required to complete. Defendant maintains
       that the parties’ agreement on specific restrictions in exchange for employment and the
       exposure to confidential information are all evidence of adequate consideration. He urges that
       based on the totality of the circumstances, applying a fact-specific approach, the consideration
       was adequate.

                                                    -9-
¶ 42       Plaintiff, on the other hand, contends that the evidence fails to establish sufficient
       consideration. In support of his contention, plaintiff offers that other than continuation of his
       employment, he received no consideration in return for execution of the agreement. Further,
       plaintiff argues that his alleged exposure to confidential information or his access to leads or
       commissions based on his ability to sell motorcycles was no different than what existed before
       he was subject to the restrictive covenants. Plaintiff additionally argues that he was not paid
       any bonus, received no modifications to his commission structure, and received no additional
       days off or any other benefits in exchange for the restrictive covenants. As corroboration,
       plaintiff invites our attention to Giglio’s testimony wherein he testified that the essential terms
       of plaintiff’s compensation did not change. Plaintiff further offers that the 90-day trial period
       for new employees, which defendant claims it waived as additional consideration, was never
       discussed and, moreover, his proven track record belied the necessity for the trial period. Thus,
       plaintiff argues that the evidence demonstrates that plaintiff was a salesman selling a fungible
       product, who left work after 18 months’ employment. Therefore, plaintiff maintains that his
       employment was of an insufficient duration to support the restrictive covenants.
¶ 43       Here, over the course of two days, the court heard evidence seeking to determine whether
       there were any facts that could constitute consideration beyond the fact of employment. The
       court expressly noted that there were potentially two things that could constitute adequate
       consideration: forgiveness of the 90-day trial period for new employees and the fact that
       plaintiff was given back his job. Referencing the parties’ acknowledgement of the caliber of
       plaintiff’s salesmanship, the court determined that allowing plaintiff to forego the 90-day trial
       period did not equate to additional consideration. At the close of the evidence, the court
       concluded that the defendant failed to demonstrate the existence of any consideration beyond
       employment sufficient to qualify as additional consideration.
¶ 44       We find the facts and the court’s analysis in Brown to be similar to the case at bar. In
       Brown, 379 Ill. App. 3d 724, the defendant was employed as a customer service representative
       for her employer. Id. at 726. While employed, her employer was purchased by the plaintiff. Id.
       As a part of the purchase, the plaintiff required the defendant to sign an employment
       agreement, which contained a postemployment restrictive covenant. Id. The defendant signed
       the agreement, and seven months later she resigned and commenced work for one of the
       plaintiff’s competitors. The plaintiff filed a breach of contract claim, alleging that the
       defendant had breached the covenant. The defendant filed and was granted a motion for
       summary judgment. Id. On appeal, this court held that there was not adequate consideration to
       support the covenants contained in the employment agreement. Notably, the court reasoned
       that although the plaintiff claimed that the defendant received additional employee benefits as
       consideration for the restrictive covenant, there was no evidence to establish what the benefits
       were or how they differed from the benefits the defendant was already receiving. Id. at 729.
       Accordingly, this court affirmed the trial court’s judgment. Id.
¶ 45       Defendant acknowledges that Fifield recognized that continued employment as
       consideration could be illusory in the context of at-will employment because the employer
       could fire the employee shortly after signing the covenant. Fifield, 2013 IL App (1st) 120327,
       ¶ 9. Further, defendant recognizes that courts have found that two years of continued
       employment will constitute adequate consideration and overcome the otherwise illusory
       benefit of continued at-will employment. Defendant maintains that here, however, there was
       no such illusory benefit for plaintiff because of the additional consideration, in the form of


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       sales leads and waiver of the 90-day trial period, and as such, plaintiff’s 18 months of
       employment is sufficient to support the restrictive covenants.
¶ 46       Although defendant claims that plaintiff received additional employee benefits as
       consideration for the restrictive covenant, the trial court having heard the testimony of the
       witnesses and having reviewed the evidence presented at the hearing found otherwise. We
       agree with the trial court’s findings. Thus, we conclude that the employment agreement is not
       supported by adequate consideration and the restrictive covenants are, therefore,
       unenforceable against plaintiff.
¶ 47       Defendant argues that the scope of Fifield’s holding should be limited to situations where
       no consideration is provided for the restrictive covenant beyond continued employment. As
       support, defendant cites to Fifield, 2013 IL App (1st) 120327, Brown, 379 Ill. App. 3d 724 and
       to Curtis 1000, 24 F.3d 941, as distinguishable from the case at bar “because in those cases, no
       consideration was provided for the existing employee to sign the restrictive covenant other
       than continued employment after the threat of discharge.” Defendant offers that Fifield and
       Brown are additionally distinguishable from the case at bar because the employees in those
       cases worked for significantly shorter periods of time.
¶ 48       Defendant apparently overlooks the trial court’s finding here that there was no additional
       consideration beyond the promise of employment. Thus, the cases cited by defendant,
       including Fifield, support the trial court’s ruling.
¶ 49       Having determined that there was inadequate consideration to support enforcement of the
       postemployment covenant, we need not assess the reasonableness of the covenant. See Fifield,
       2013 IL App (1st) 120327, ¶ 13; see also Prairie Rheumatology Associates, 2014 IL App (3d)
       140338, ¶ 19.

¶ 50                                          CONCLUSION
¶ 51       Because there was inadequate consideration, the postemployment restrictive covenants
       against plaintiff are unenforceable as a matter of law. Thus, defendant is unable to demonstrate
       the likelihood of succeeding on the merits. Therefore, the trial court did not abuse its discretion
       in denying defendant’s motion for preliminary injunction.
¶ 52       For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 53      Affirmed.

¶ 54       JUSTICE ELLIS, dissenting.
¶ 55       I respectfully dissent. I understand that the majority attempts to apply existing law to the
       facts of this case. I simply disagree as to what that existing law is, and I disagree that we should
       follow it, in any event. I do not believe that a per se rule exists in Illinois, requiring that an
       at-will employee remain employed for at least two years–not one day less–after signing a
       restrictive covenant before sufficient consideration is found to exist. Nor do I believe that a
       bright-line, two-year rule is warranted. I also believe that the circumstances under which
       plaintiff left employment–whether he left voluntarily or was fired–are relevant to the
       determination. Cases like these are inherently fact-specific, and I do not believe that this area
       of the law is the place for bright-line rules that remove relevant facts from consideration.



                                                    - 11 -
¶ 56       I would analyze the adequacy of consideration on a case-by-case basis, taking into account
       the amount of time plaintiff worked postcovenant, the circumstances under which plaintiff left
       the job, as well as any other relevant factors in the totality of the circumstances. In this case,
       given that plaintiff worked postcovenant for what I consider to be a substantial amount of
       time–18 months–and given that he left of his own accord, I would find that sufficient
       consideration exists for the restrictive covenant in this case. I would reverse the trial court’s
       ruling and remand for consideration of the remainder of the analysis governing restrictive
       covenants.

¶ 57                      I.Whether a Bright-Line Rule Exists Under Illinois Law
¶ 58        I agree with the majority that, under Illinois law, an employee must remain employed for a
       “ ‘substantial period of time’ ” following the signing of a restrictive covenant before a court
       will find that covenant supported by sufficient consideration. Fifield v. Premier Dealer
       Services, Inc., 2013 IL App (1st) 120327, ¶ 14 (quoting Brown & Brown, Inc. v. Mudron, 379
       Ill. App. 3d 724, 728 (2008)). I just do not see why that “substantial period of time” must be
       two years, and not one day less, in every single case, regardless of the circumstances. Under
       the bright-line test the majority applies, had plaintiff worked for 1 year and 364 days before
       voluntarily resigning, the covenant would be unenforceable for want of consideration (unless
       there was some other, additional consideration like a bonus or more vacation time), but had he
       worked one more day, consideration for the covenant would be sufficient.
¶ 59        Our supreme court has never suggested that a bright-line rule applies here. Nor does any
       statute that we are compelled to follow. At best, I believe that the law from our appellate court
       on this topic is unclear. In any event, I find nothing about the time period of 2 years, versus 20
       months or 30 months or any other time period, that demands that we carve it into law as a
       bright-line, dispositive time period.
¶ 60        I do agree that “[g]enerally, Illinois courts have held that continued employment for two
       years or more constitutes adequate consideration.” Id. But that is not a bright-line rule; that is
       merely an accurate summary of prevailing law. That is to say, two years has generally been
       deemed sufficient to constitute adequate consideration in this context. See, e.g., McRand, Inc.
       v. Van Beelen, 138 Ill. App. 3d 1045, 1056 (1985) (two years of postcovenant employment was
       sufficient consideration); Corroon & Black of Illinois, Inc. v. Magner, 145 Ill. App. 3d 151,
       163 (1986) (four years of postcovenant employment held sufficient).
¶ 61        But saying that courts have generally found two years of postcovenant employment to be
       sufficient is very different than saying that anything less than two years is automatically
       insufficient. See Fifield, 2013 IL App (1st) 120327, ¶ 19. The point of requiring adequate
       consideration for a restrictive covenant–in the form of continued employment thereafter for a
       substantial period of time–is to prevent an employer from locking an at-will employee into a
       restrictive covenant and then firing that employee shortly thereafter, rendering the
       consideration of future employment “illusory.” See Brown, 379 Ill. App. 3d at 728; Curtis
       1000, Inc. v. Suess, 24 F.3d 941, 946 (7th Cir. 1994); Cumulus Radio Corp. v. Olson, No.
       15-cv-1067, 2015 WL 643345, at *5 (C.D. Ill. Feb. 13, 2015). That rule makes perfect sense.
       An employer should not be able to prevent its competitors from hiring a valuable employee by
       hiring that employee itself, locking him or her into a restrictive covenant, and then firing him
       or her soon thereafter, leaving that employee unable to work for either that employer or its
       competitor. Courts have generally found that an employee’s continued employment for two

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       years postcovenant is a sufficiently long time to alleviate that concern. Generally speaking,
       that does not strike me as unreasonable. Two years is a long time to remain employed at a job,
       and probably long enough to show that the employer was not merely playing games with a
       competitor. But 23 months is a long time, too. So is 18 months, the amount of time plaintiff in
       this case worked for defendant before quitting the second time. Simply put, there is nothing
       particularly significant about the term of 24 months that should elevate it to a per se minimum
       requirement.
¶ 62       Nor, in my opinion, does the case law compel that result. The majority relies on Fifield. I
       do believe that Fifield was correctly decided, in that the court there found that three months of
       postcovenant employment constituted insufficient consideration to support the covenant.
       Fifield, 2013 IL App (1st) 120327, ¶ 19. I would extend Fifield no further.
¶ 63       I recognize that the court in Fifield wrote that “Illinois courts have repeatedly held that
       there must be at least two years or more of continued employment to constitute adequate
       consideration in support of a restrictive covenant.” Id. As I read that language, the court was
       not announcing a new rule after weighing its pros and cons–instead, it was citing case law that,
       in its view, had already created a rule. But I do not believe that the cases on which it relied
       supported that proposition. In Lawrence & Allen, Inc. v. Cambridge Human Resource Group,
       Inc., 292 Ill. App. 3d 131, 138 (1997), the employee worked from June 1989 to November
       1991, well over two years after signing the restrictive covenant; the court simply held that this
       2½ year period of time constituted sufficient consideration. The court never suggested that two
       years was a mandatory minimum. In support, Lawrence cited to Agrimerica, Inc. v. Mathes,
       199 Ill. App. 3d 435, 442 (1990), which likewise held that “more than two years of continued
       employment constituted sufficient consideration.” Lawrence, 292 Ill. App. 3d at 138
       (discussing Agrimerica). The second case on which Fifield relied, Brown & Brown, 379 Ill.
       App. 3d at 729, merely held that, where the employee worked approximately seven months
       after signing the restrictive covenant, the covenant lacked consideration. Brown & Brown
       noted the prevailing view that “Illinois courts have generally held that two years or more of
       continued employment constitutes adequate consideration” (id. at 728-29) but never suggested
       that anything less than two years was automatically inadequate.
¶ 64       The final case on which Fifield relied was Diederich Insurance Agency, LLC v. Smith,
       2011 IL App (5th) 100048. There, the court found that three months of continued employment
       after signing the restrictive covenant was insufficient consideration. Id. ¶ 15. It is true that the
       court wrote that “in general, there must be at least two years or more of continued employment
       to constitute adequate consideration.” Id. But on closer scrutiny, not even that language
       supports a bright-line test. First, the use of the phrase “in general” does not suggest a per se rule
       but merely a general principle. Second, in support of that statement of the law, Diederich relied
       on Lawrence, which, as described above, did not hold anything other than a period of
       postcovenant employment of more than two years was adequate consideration for the
       covenant. Diederich’s citation to Lawrence, for the proposition that a mandatory two-year
       employment period is required–or rather “generally” required–was simply a misstatement of
       the holding in Lawrence.
¶ 65       Diederich also cited Mid-Town Petroleum, Inc. v. Gowen, 243 Ill. App. 3d 63 (1993),
       where the employee’s postcovenant employment lasted seven months. Mid-Town did not hold
       that a bright-line, two-year rule applied, either. It did not articulate any test. In fact, it held that


                                                     - 13 -
       whether the consideration was sufficient was a “question of fact” (id. at 71) properly resolved
       in the negative by the trial court.
¶ 66       None of these cases, in my view, supports the application of a bright-line, minimally
       necessary period of two years of postcovenant employment before consideration can be
       deemed sufficient. Nor, for that matter, was such a bright-line rule necessary to the outcome of
       any of those cases. In the two cases that have specifically mentioned the two-year period as a
       mandatory minimum amount of time for postcovenant employment–Fifield did so explicitly
       and Diederich called it a “general” rule–the employees worked approximately three months
       after signing their restrictive covenants. Diederich, 2011 IL App (5th) 100048, ¶ 15; Fifield,
       2013 IL App (1st) 120327, ¶ 19 (“slightly longer than three months”). That amount of time fell
       far short of any possible articulation of a “substantial period of time” required by the case law.
       Likewise, Brown & Brown and Mid-Town both involved postcovenant employment periods
       that spanned only seven months. Brown & Brown, 379 Ill. App. 3d at 729; Mid-Town, 243 Ill.
       App. 3d at 71. Determining whether two years was a mandatory minimum amount of time
       never needed to factor into the analysis in those cases.
¶ 67       It is also worth noting that, while decisions of federal courts applying Illinois law do not
       bind us, several federal district court decisions have recently struggled with this very question,
       whether this two-year, bright-line rule exists in Illinois for postcovenant employment. The
       duty of a federal court considering an Illinois state-law claim is to follow Illinois Supreme
       Court precedent on the issue or, in the absence of a supreme court case on point, to make a
       “predictive judgment” based on prevailing appellate court case law as to how the supreme
       court would rule. (Internal quotation marks omitted.) Cumulus, 2015 WL 643345, at *4; see
       also Bankers Life & Casualty Co. v. Miller, No. 14 CV 3165, 2015 WL 515965, at *3 (N.D. Ill.
       Feb. 6, 2015). In three of the four federal court decisions recently applying Illinois law on this
       subject, the court has determined that the Illinois Supreme Court would not adopt this
       bright-line rule. See Cumulus, 2015 WL 643345, at *4-7 (restrictive covenant supported by
       sufficient consideration where employee worked for 21 months postcovenant); Bankers Life,
       2015 WL 515965, at *3-4 (length of employees’ postcovenant employment not specified, but
       less than two years; court refused to reject covenants for lack of consideration); Montel
       Aetnastak, Inc. v. Miessen, 998 F. Supp. 2d 694, 716 (N.D. Ill. 2014) (employment for 15
       months postcovenant constituted sufficient consideration). The court in Montel refused to
       apply the bright-line rule “[g]iven the contradictory holdings of the lower Illinois courts.” Id.
       Another federal court sharply criticized the bright-line rule as an “overprotective” rule that
       “risks making post-employment restrictive covenants illusory.” Cumulus, 2015 WL 643345, at
       *4. The third reasoned that the bright-line rule found in Fifield was dicta, not the holding of the
       case, and that such a “rigid” rule would not be accepted by the Illinois Supreme Court. Bankers
       Life, 2015 WL 515965, at *4.
¶ 68       As the majority notes, one federal district court case recently found that the bright-line rule
       did exist under Illinois law. Instant Technology, LLC v. DeFazio, 40 F. Supp. 3d 989 (N.D. Ill.
       2014). I do not find that decision persuasive because its reasoning consisted of nothing more
       than the court’s citation to Fifield and the three cases on which it relied, Lawrence, Brown &
       Brown, and Diederich, none of which, as detailed above, supported that broad proposition.
       That decision stands in stark contrast to Cumulus and Bankers Life, each of which carefully
       considered the reasoning behind the bright-line rule and rejected it, before then concluding that
       the Illinois Supreme Court would reject it, too.


                                                   - 14 -
¶ 69       In my review of the case law, I have seen no case that has explained why two years should
       or must be a mandatory minimum amount of time. None of the cases cited by Fifield did. Nor
       did Fifield, which merely cited to case law that, in its view, had already set forth a rule. I do not
       believe that such a rule is defensible. We should not follow it simply because language to that
       effect was found in one appellate court decision out of dozens on this issue, especially when
       that language was not essential to its ultimate holding.
¶ 70       It is also worth nothing that, while our supreme court has not addressed the issue before us,
       it did comment on another part of the restrictive-covenant analysis–whether the terms of a
       covenant are reasonable–and in that context, affirmatively rejected a rigid, bright-line test in
       favor of a case-by-case analysis. See Reliable Fire Equipment Co. v. Arredondo, 2011 IL
       111871. In Arredondo, the supreme court overruled appellate decisions that had applied a more
       rigid formula than the supreme court’s three-pronged “rule of reason” test. The court
       reemphasized its commitment to the three-pronged test, “grounded in the totality of the
       circumstances.” Id. ¶ 42. I believe that, if confronted with the question before us today, the
       supreme court would likewise eschew a bright-line test for adequate consideration in favor of a
       more flexible case-by-case determination, considering the totality of the circumstances.
¶ 71       The supreme court in Arredondo noted that the appellate courts had taken various language
       from its previous holdings to formulate a more rigid analysis but cautioned the courts from
       reading too much into the language of those previous supreme court holdings: “The
       understandable temptation is to view exemplary facts presented in particular cases as the
       outermost boundary of the inquiry. *** However, if it were possible to make a complete list
       today, human ingenuity would render the list obsolete tomorrow. [Citation.]” (Internal
       quotation marks omitted.) Id. ¶ 40. I believe that this has happened with regard to the issue
       before us today. Our appellate courts have taken “exemplary facts”–cases where the
       postcovenant employment was two years or greater, and found to constitute adequate
       consideration–and elevated the period of two years to the “outermost boundary of the inquiry.”

¶ 72                         II. “Additional Consideration” for the Covenant
¶ 73       The majority argues that it is not limiting its analysis of consideration to a numerical
       formula, because defendant was free to show that plaintiff received other consideration,
       beyond the mere fact of continued employment for 18 months. First, I disagree that this is a
       departure from a bright-line rule. The majority is still holding that anything less than two years
       is not enough by itself, in any case, regardless of the circumstances, to constitute sufficient
       consideration.
¶ 74       I also question the concept of “additional consideration” in the context of a newly hired
       employee, like plaintiff in this case, as opposed to an existing employee presented with a
       restrictive covenant. I do not see what, beyond employment and whatever terms accompany it,
       a new hire could receive as “additional consideration.” For an existing employee presented
       with a restrictive covenant, it is not hard to imagine what consideration the employee might
       receive in exchange for signing the covenant: a bonus, a raise, a promotion, more vacation or
       sick time, etc. In Brown & Brown, 379 Ill. App. 3d at 729, for example, the employee had
       worked for five years at the company before signing the restrictive covenant at the request of
       the company’s new owners. Thus, after concluding that seven months of postcovenant
       employment was insufficient by itself to constitute adequate consideration for the covenant,
       the court proceeded to inquire as to whether any additional consideration was present–the

                                                    - 15 -
       company claimed the employee had been provided “additional benefits”–but the court
       ultimately found that the company failed to establish what those benefits were “with
       specificity.” Id. That analysis made sense, because the employee was an existing employee,
       with a preexisting salary and benefits and responsibilities and terms of employment that could
       be improved upon.
¶ 75       But a new hire? When new employees are hired, they get what they get. The salary is
       whatever they are offered. The vacation time is whatever they are given. The job they are
       offered is the job they are offered. There is no such thing as a “raise” when the individual did
       not have a salary in the first place. They cannot be given “more” vacation time when they did
       not have vacation time at all. They cannot be promoted from a position they do not presently
       hold.
¶ 76       The majority agrees that plaintiff was a newly hired employee at the time he signed the
       restrictive covenant. Though plaintiff had previously worked for defendant, he quit, and then
       he returned and asked for his job back. At the time he returned–at the time he signed the
       covenant in exchange for getting back his job–he had no salary, he had no benefits, he had no
       vacation or sick leave. In this case, I cannot imagine what possible “additional consideration”
       plaintiff could have been given beyond employment for a substantial period of time, and
       whatever terms and benefits accompanied that employment.
¶ 77       I simply do not see what the concept of “additional consideration” could mean when an
       employee is newly hired and signs the restrictive covenant at the time of hiring, as did plaintiff
       here. I do not see how this concept contributes to the analysis of the adequacy of consideration.

¶ 78                            III. The Terms of the Employee’s Departure
¶ 79       Consistent with my argument that analysis of this issue should be based on the totality of
       the circumstances on a case-by-case basis, I also believe that whether an employee leaves
       voluntarily or involuntarily should be part of the calculus. We necessarily analyze the
       adequacy of consideration in hindsight, looking at how long the employee worked. I do not
       understand why we would not also consider the reason for the employee’s departure. Here
       again, I prefer a more flexible, factually based analysis over yet another bright-line rule–that
       the reason for the employee’s departure is utterly irrelevant, every time.
¶ 80       I acknowledge that there is case law holding that whether the employee resigns or is fired is
       irrelevant. Fifield said it, citing to Diederich and Brown & Brown. Fifield, 2013 IL App (1st)
       120327, ¶ 19. Diederich and Brown & Brown said it, citing to Mid-Town. Diederich, 2011 IL
       App (5th) 100048, ¶ 15; Brown & Brown, 379 Ill. App. 3d at 729.
¶ 81       But Mid-Town did not so hold. In Mid-Town, the employee had worked for the company
       for approximately 15 years before being presented with a restrictive covenant. The trial court
       specifically found that, in exchange for signing that covenant, the employee was offered a
       promotion from sales representative to sales manager, a promotion that allowed him to report
       directly to the Chief Executive Officer (CEO). Mid-Town, 243 Ill. App. 3d at 70. The appellate
       court agreed with the trial court that the employee “would not have continued employment
       without the offer to become sales manager.” Id. at 71. But then the company reneged on the
       deal. Within six or seven months, the company changed the employee’s job description, such
       that the employee “would no longer be reporting as sales manager to the CEO.” Id. at 70. The
       employee quit the next day. Id. Without this additional consideration of a job promotion, the
       court was left with nothing more in terms of consideration for the covenant than the

                                                   - 16 -
       employee’s continued employment for approximately seven months, which it found
       insufficient. Id. at 71.
¶ 82       Mid-Town does not stand for the proposition that whether the employee is fired or leaves
       voluntarily is irrelevant to the determination of adequate consideration. The consideration
       there was inadequate, but not because the employee left. It was inadequate because the
       company reneged on it. In other words, the consideration did not fail because the employee
       quit; the employee quit because the consideration failed. See Brown & Brown, 379 Ill. App. 3d
       at 730-31 (Schmidt, J., dissenting); Cumulus, 2015 WL 643345, at *5 (finding that Mid-Town
       does not stand for proposition that circumstances of employee’s departure are irrelevant).
¶ 83       Again, as with my objection relating to the bright-line, two-year rule, I have read no Illinois
       decision that explained why the reason for an employee’s departure should be irrelevant in
       every single case. I think it should be a relevant consideration. If the employee left of his or her
       own accord after a lengthy stay on the job, there is no basis to believe that the employer’s
       promise of employment was “illusory” or insincere or fraudulent. One could conceive of a fact
       pattern where an employer constructively discharged an employee–made life for that
       employee so unpleasant that a voluntary resignation was not so voluntary–but again, that
       would be a factor thrown in the mix of relevant considerations for a court to determine on a
       case-by-case basis.
¶ 84       This one-two punch of bright-line rules–holding that two years of continued employment
       is a mandatory minimum, and refusing to consider the circumstances surrounding the
       employee’s departure–is problematic not only because it fails to take into account individual
       circumstances of a particular case, but also because it does not promote good public policy.
       Again, the purpose behind requiring adequate consideration when an at-will employee signs a
       restrictive covenant is to prevent unfair gamesmanship–to stop an employer from using it to
       prevent an employee from working for a competitor, by locking that employee into a covenant
       not to compete and then terminating that employee. To say it another way, the requirement of
       adequate consideration protects at-will employees from the whim of the employer.
¶ 85       But setting a bright-line time period of two years’ continued employment, and paying no
       attention to whether the employee voluntarily resigned, creates the same problem in reverse.
       Under these automatic rules, “ ‘an employee can void the consideration for any restrictive
       covenant by simply quitting for any reason’ ” within the first two years, thereby rendering
       “ ‘all restrictive covenants illusory in [Illinois]’ ” because they would be “ ‘voidable at the
       whim of the employee.’ ” Id. (quoting Brown & Brown, 379 Ill. App. 3d at 730 (Schmidt, J.,
       dissenting)).
¶ 86       I prefer an analysis that gives neither party an automatic upper hand. If we were to require
       adequate consideration in the form of continued employment for a substantial period of time,
       without defining in a bright-line way what that substantial period of time must be, and if we
       took into account the circumstances of the employee’s departure, we would not put the
       employee’s fate at the whim of the employer, nor the employer’s fate at the whim of the
       employee.
¶ 87       It is undisputed that plaintiff here continued employment with defendant for 18 months
       after signing the restrictive covenant upon his re-hiring. He left of his own accord, joining
       defendant’s competitor. I see nothing in these facts that suggest the defendant’s promise of
       future employment was “illusory” or in any way insincere, and I believe that 18 months is a
       substantial period of time. I would therefore hold that there was sufficient consideration for the

                                                    - 17 -
restrictive covenant in this case. I would reverse the trial court’s ruling and remand it for
further proceedings regarding the restrictive covenant, namely whether the covenant’s terms
were “reasonable” under Illinois law.




                                         - 18 -
