Illinois Bar Journal

Suppose your client walks into your office and explains that he has been sued by his former employer for violation of a noncompete clause in his employment contract. Your client signed the noncompete a week after starting his employment and then worked for the employer for 23 months. Is the noncompete supported by adequate consideration? The answer could depend on the judge and court hearing the case.

A postemployment restrictive covenant must be supported by adequate consideration—generally characterized as “employment for a substantial period of time.” But what is a “substantial period of time”? May other forms of consideration be substituted? Does it matter if an employee quits or is terminated with or without cause? Illinois appellate courts have been unable to clearly answer these questions.

Appellate and trial courts are issuing inconsistent decisions concerning proper standing and jurisdiction following the U.S. Supreme Court’s opinion in Spokeo, Inc. v. Robins. The uncertainty created by these decisions means judges and attorneys must juggle many variables when considering choice of venue in Illinois and other states. The difference is in how each court defines concrete injury and whether the threat of future harm is sufficiently concrete. An illustration of these inconsistencies is in cases brought by consumers affected by data breaches. In those cases, consumers’ personal information became exposed to parties not authorized to see or possess it. Claims based on data breaches typically include, if not solely rely on, allegations that consumers were injured because the mere exposure of their personal information created a threat of future harm. Read Mark Bernstein’s article, “Standing Here or There?,” in October’s Illinois Bar Journal for a detailed analysis of venue and jurisdiction implications when trying or defending cases involving concrete-injury and future-harm claims.

In August, the American Bar Association’s House of Delegates approved changes to its Model Rules of Professional Conduct concerning advertising. In October’s Illinois Bar Journal, ISBA General Counsel Charles Northrup, in light of the ABA’s decision, revisits the fundamental principle set out in Illinois Rule of Professional Conduct (IRPC) 7.1 — that lawyers may not make false or misleading communications about themselves, their practices, or their services. Given the ABA’s recent action, Northrup suggests revisiting this fundamental principle is worthwhile.

Hosting a business dinner is a great way to make a good impression and build rapport with clients. Thinking through the details in advance will go a long way toward a good evening and a good impression of the host – you. In September’s Illinois Bar Journal, Karen Erger, vice president at Lockton Companies, breaks down do’s and don’ts of hosting a business dinner.