E-FILED

Transaction ID: 3-17-0803

File Date: 2/14/2018 12:01 PM
Barbara Trumbo, Clerk of the Court
APPELLATE COURT 3RD DISTRICT
No. 3-17-0803

IN THE APPELLATE COURT OF ILLINOIS

THIRD JUDICIAL DISTRICT

)
PAM’S ACADEMY OF DANCE/FORTE ARTS ) Appeal from the Circuit Court of the
CENTER, ) Thirteenth Judicial Circuit, Grundy
) County, Illinois
Plaintiff-Appellee, )
) Case No. 16-LM-155
v. )
) Circuit Judge: Sheldon Sobel
)
CALLIE MARIK, ) Appeal from Order dated June 28, 2017
) Certified Questions granted November
Defendant-Appellant. ) 8, 2017
)

BRIEF OF DEFENDANT-APPELLANT

Kenneth J. Vanko
Emily L. Langhenry
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
langhenry@ccmlawyer.com

Counsel for Defendant-Appellant

 POINTS AND AUTHORITIES

NATURE OF THE ACTION ...............................................................................................................1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ................................................................1
STATEMENT OF JURISDICTION ......................................................................................................1
STATEMENT OF FACTS....................................................................................................................2
The Initial Complaint.......................................................................................................... 2
Marik’s Motion to Dismiss and the First Amended Complaint ...................................3
Pam’s Academy’s Allegations in the First Amended Complaint .................................3
The Restrictive Covenants in the Agreement ...................................................................4
Marik’s Second Motion to Dismiss ...................................................................................5
The Circuit Court’s Dismissal and Certification Orders................................................5
ARGUMENT .....................................................................................................................................6
I. Standard of Review ...............................................................................................................6
Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45 (2007) ..............................................................6
Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871 ..........................................................6
Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52 (2006). ......................................................6
II. Generally accepted contract construction rules illustrate that restrictive covenants
lasting “not less than” a stated time period are indefinite. ...........................................6
A. The circuit court’s interpretation of the durational limit runs counter to
the plain-meaning rule....................................................................................................7
Thompson v. Gordon, 241 Ill. 2d 428 (2011). .................................................................................7
USG Interiors, Inc. v. Commercial and Architectural Products, Inc., 241 Ill. App. 3d 944
(1st Dist. 1993).........................................................................................................................7
Johnson v. Servicemaster Industries, Inc., 254 Ill. App. 3d 353 (1st Dist. 1992).....................7, 8
Foxfield Realty, Inc. v. Kubala, 287 Ill. App. 3d 519 (2d Dist. 1997) ..........................................8
Robinwood, Inc. v. Baker, 425 S.E.2d 353 (Ga. Ct. App. 1992) ...................................................8
B. Eliminating the words “not less than” results in a contact laden with
surplus terminology. ......................................................................................................8
Berkeley Properties, Inc. v. Balcor Pension Investors, II, 227 Ill. App. 3d 992
(1st Dist. 1992). .........................................................................................................................9

i
Tyler Enterprises of Elwood, Inc. v. Shafer, 214 Ill. App. 3d 145 (3d Dist. 1991) .......................9
C. The strict-construction rule should have prevented the circuit court from
reading a firm durational limit into the restrictive covenants. ...............................9
Aqua-Aerobic Systems, Inc. v. Ravitts, 166 Ill. App. 3d 168 (2d Dist. 1988) ...........................10
Jefco Laboratories, Inc. v. Carroo, 136 Ill. App. 3d 793 (1st Dist. 1985) ....................................10
Citadel Inv. Group, LLC v. Teza Techs., LLC, 398 Ill. App. 3d 724 (1st Dist. 2010) ................10
Marwaha v. Woodridge Clinic, S.C., 339 Ill. App. 3d 291 (2d Dist. 2003) ...............................10
Bloomington Urological Assocs., S.C. v. Scaglia, 292 Ill. App. 3d 793 (4th Dist. 1997) ...........10
D. This Court should apply the appropriate rules of construction to answer
the second certified question in the negative. ..........................................................10
III.Restrictive covenants of uncertain and unlimited duration are void and
unenforceable. ......................................................................................................................11
Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL App (3d) 140338 ................................11
Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871 ..................................................11, 13
House of Vision, Inc. v. Hiyane, 37 Ill. 2d 32 (1967) .......................................................12, 14, 15
L&R Insurance Agency, Inc. v. McPhail, 92 Ill. App. 2d 107 (5th Dist. 1968) ..................12, 13
Liautaud v. Liautaud, 221 F.3d 981 (7th Cir. 2000) ....................................................................13
Unilog Content Solutions, LLC v. Thanx Media, Inc., No. 15 C 5899, 2016 WL 7212477
(N.D. Ill. Dec. 13, 2016) .........................................................................................................13
Cincinnati Tool Steel Co. v. Breed, 136 Ill. App. 3d 267 (2d Dist. 1985) ..................................13
Petrzilka v. Gorscak, 199 Ill. App. 3d 120 (2d Dist. 1990) ...................................................13, 14
Cambridge Eng’g, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437
(1st Dist. 2007)........................................................................................................................14
Lawrence & Allen, Inc. v. Cambridge Human Resource Group, Inc., 292 Ill. App.
3d 131 (2d Dist. 1997) ............................................................................................................15
Tradesman Int’l v. Black, 724 F.3d 1004 (7th Cir. 2013) ......................................................15, 16
Center for Sight of Central Illinois I, S.C. v. Deranian, 305 Ill. App. 3d 909
(4th Dist. 1999) .......................................................................................................................15
Conclusion ...................................................................................................................................17
Certificate of Compliance .........................................................................................................18

ii
 NATURE OF THE ACTION
This action concerns claims brought by Pam’s Academy of Dance/Forte Arts Center

(“Pam’s Academy”) against a former employee, Callie Marik. Those claims arise under

a Non-Disclosure Agreement and Restrictive Covenant (the “Agreement”). (R. C001-5,

C020-43). After Marik unsuccessfully sought to dismiss the First Amended Complaint,

she asked the circuit court to certify questions for interlocutory review concerning the

interpretation and enforceability of post-termination restrictive covenants in the

Agreement. (R. C079-123). The circuit court granted that motion, certifying both

questions Marik proposed. (A2-3; R. C155-56). Under Supreme Court Rule 308, Marik

filed her Application for Leave to Appeal in this Court, which was granted in an Order

dated January 10, 2018. All questions in this appeal are raised on the pleadings.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

The certified questions presented for review are:

(1) Do employment-based restrictive covenants with time

periods lasting “not less than” five and “not less than” three
years contain an enforceable and reasonable temporal scope
under Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL
App (3d) 140338, and Reliable Fire Equipment Co. v. Arredondo,
2011 IL 111871?

(2) In the context of employment-based restrictive covenants,

do restrictions lasting “not less than” five and “not less
than” three years mean five and three years respectively?

(A2-3; R. C155-56).

STATEMENT OF JURISDICTION
On June 28, 2017, the circuit court denied Marik’s Section 2-615 Motion to Dismiss

Counts I and II of the First Amended Complaint. (A1; R. C078). The circuit court also

1
dismissed Count III with leave to replead, but Pam’s Academy did not do so. (A1; R.

C078). On August 8, 2017, Marik filed her Motion to Certify for Interlocutory Appeal

Questions Arising From Denial of Motion to Dismiss. (R. C079-123). On November 8,

2017, the circuit court granted that motion as to each proposed certified question. (A2-3;

R. C155-56).

Marik then filed her Application for Leave to Appeal Under Supreme Court Rule 308

on November 28, 2017. In an Order dated January 10, 2018, this Court allowed Marik’s

Rule 308 application, certified both questions Marik proposed, and entered a briefing

schedule. This Court, therefore, has jurisdiction over this interlocutory appeal under

Supreme Court Rule 308.

STATEMENT OF FACTS
The Initial Complaint

On October 14, 2016, Pam’s Academy sued Marik, claiming she breached various

post-employment restrictive covenants in the Agreement. (R. C001-5). In its initial

pleading, Pam’s Academy generally alleged that Marik violated the Agreement by: (a)

soliciting “existing clients and/or students” of Pam’s Academy, (b) soliciting and

communicating “with peers who are/were clients, students and/or parents for the

purpose of providing similar services” that Pam’s Academy did, (c) providing services

to “former clients/students” of Pam’s Academy, and (d) operating a dance studio if

Marik’s facility was located within 25 miles of Pam’s Academy. (R. C001-2). Pam’s

Academy requested injunctive relief and damages. (R. C002-3).

2
 Marik’s Motion to Dismiss and the First Amended Complaint

Marik responded on January 11, 2017 by filing a Section 2-615 Motion to Dismiss. (R.

C009-18). Among other arguments, Marik contended that the restrictive covenants

contained in the Agreement lacked any temporal limit and were, therefore, void. (R.

C010-12). In response, Pam’s Academy filed a First Amended Complaint. (R. C020-43).

In that amendment, Pam’s Academy separated its original breach-of-contract claim into

Counts I and II and added a third cause of action for trade secrets misappropriation

under the Illinois Trade Secrets Act, 765 ILCS 1065/1 et seq. (R. C023-27). The First

Amended Complaint also attached a different form of the Agreement as an exhibit,

which had an effective date earlier than the version Pam’s Academy attached to the

initial Complaint. (R. C028). Aside from the date, though, the Agreement was identical

in substance to that contained in the original filing. (R. C005, C028).

Pam’s Academy’s Allegations in the First Amended Complaint

In the First Amended Complaint, Pam’s Academy alleged that it operates a dance

studio offering classes in ballet, tap, jazz, pointe, and tumbling. (R. C020). It claimed

that Marik became an employee in 2013 and “primarily taught ballet classes.” (R. C021).

After summarizing various provisions of the Agreement, Pam’s Academy alleged that

Marik resigned in June of 2016 and began a dance studio called Underground Allegro,

which offers ballet, jazz, and contemporary dance technique. (R. C021-22). Pam’s

Academy then claimed that this studio―Underground Allegro―was located 19.16 miles

from Channahon, Illinois, where Pam’s Academy maintains a facility. (R. C022). Finally,

Pam’s Academy offered several allegations “on information and belief” that Marik

3
contacted parents and students of Pam’s Academy and “encouraged them to enroll at

dance classes at [Underground] Allegro.” (R. C022).

The Restrictive Covenants in the Agreement

Though Pam’s Academy did not specify which covenants in the Agreement it felt

Marik had violated, the Agreement contains three separate post-termination restrictive

covenants that form the basis for this action. (R. C028). They are contained in

Paragraphs 3, 4, and 7 and provide as follows:

3. Upon termination of employment for any reason

whatsoever, the undersigned will not engage in any similar
business, either directly or indirectly, as a shareholder,
officer, or director of any corporation, or as a partner in any
general or limited partnership or individually as a sole
proprietorship engaged in a similar business within a 25
mile radius of Pam’s Academy of Dance, for a period of not
less than five (5) years form [sic] the date of written
termination of employment from Pam’s Academy of Dance.

4. It is further agreed, that as a condition of employment

and/or continued employment of [sic] Pam’s Academy of
Dance, the undersigned will not solicit or do business with
any of the teachers, students and/or parents of Pam’s
Academy of Dance, during the two (2) period to the
termination of employment and for a period of not less than
three (3) years from the date of termination of employment,
for whatever reason, notwithstanding that the undersigned
may be engaged, either directly or indirectly in a similar
business within a twenty five (25) mile limitation described
above.

7. The undersigned agrees not to solicit, interfere with,

divert, or otherwise communicate with any person who is a
customer, client, student, parent, or employee for the
purpose of providing similar services or products as
provided by Pam’s Academy of Dance.

4
(R. C028).

Marik’s Second Motion to Dismiss

Marik again moved to dismiss the entire action under Section 2-615. (R. C045-55). As

she did in her initial motion, Marik argued that the restrictive covenants in the

Agreement, which formed the predicate for Counts I and II, contained indefinite

durational limits. (R. C047-49). In particular, Marik argued that the covenants in

Paragraphs 3 and 4, which purport to last for “not less than” five and three years

respectively, lack a temporal limit and are unreasonable as a matter of law. (R. C048-50).

Marik further argued that Paragraph 7, a third and related post-termination covenant,

lacks any temporal limit at all. (R. C048). Marik advanced other arguments as to Counts

I and II, which addressed substantive overbreadth problems concerning the applicable

covenants. (R. C049-52).

Opposing the Section 2-615 motion, Pam’s Academy disagreed with Marik’s

assertions that both Paragraphs 3 and 4 were indefinite and that they were

unreasonable restraints under Illinois law. (R. C060-65). Pam’s Academy did not

attempt to justify Paragraph 7, arguing it was a “redundant clause” that was “not an

integral part of the contract.” (R. C063).

The Circuit Court’s Dismissal and Certification Orders

On June 28, the circuit court denied Marik’s Section 2-615 motion as to Counts I and

II, finding the restrictive covenants last for periods of five and three years respectively.

(A1; R. C078). The court also struck, as overbroad, Paragraph 7 of the Agreement. (A1;

R. C078). Finally, the court dismissed Count III without prejudice and gave Pam’s

5
Academy until July 26, 2017 to file an amended claim for trade secrets

misappropriation. (A1; R. C078). Pam’s Academy did not do so, meaning only Counts I

and II remain pending in the circuit court.

On August 8, 2017, Marik filed her Motion to Certify for Interlocutory Appeal

Questions Arising from Denial of Motion to Dismiss. (A2-3; R. C079-123). After full

briefing, the circuit court entered an Order on November 8 granting Marik’s motion on

each proposed certified question. (R. C155-56). This Court then allowed Marik’s

application under Supreme Court Rule 308.

ARGUMENT
I. Standard of Review

This Court reviews de novo a certified question under Supreme Court Rule 308.

Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007). The certified questions in

this interlocutory appeal involve the validity of an employment-based restrictive

covenant, which is a question of law appropriate for de novo review. Reliable Fire

Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 12; Mohanty v. St. John Heart Clinic, S.C.,

225 Ill. 2d 52, 63 (2006).

II. Generally accepted contract construction rules illustrate that restrictive covenants
lasting “not less than” a stated time period are indefinite.

Because it is foundational to the overall reasonableness inquiry, Marik addresses the

second certified question first. That question states:

In the context of employment-based restrictive covenants, do

restrictions lasting “not less than” five and “not less than”
three years mean five and three years respectively?

6
(A2-3; R. C155-56). In its June 28, 2017 Order, the circuit court found that the restrictive

covenants in Paragraphs 3 and 4 of the Agreement contained a certain time limit. (A1;

R. C078). That is, the court ruled that the term “not less than” five and three years

meant five and three years. (A1; R. C078). The circuit court’s ruling represents a marked

departure from well-established principles of contract construction, particularly those

applicable to disfavored restraints of trade. For the following reasons, this Court should

answer the second certified question in the negative.

A. The circuit court’s interpretation of the durational limit runs counter to the
plain-meaning rule.

The first interpretive principle is the most basic of all. If a contract’s language is clear

and unambiguous, courts must adopt the agreement’s “plain, ordinary and popular

meaning.” Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). To that end, courts must

construe the meaning of a contract by looking at the words used; they cannot interpret

the agreement in a way that is contrary to the plain and obvious meaning of those

words. USG Interiors, Inc. v. Commercial and Architectural Products, Inc., 241 Ill. App. 3d

944, 948 (1st Dist. 1993) Courts, therefore, construe contracts as written―not as one

party later finds it would prefer it to have been written. Johnson v. Servicemaster

Industries, Inc., 254 Ill. App. 3d 353, 361 (1st Dist. 1992).

The commonly understood meaning of the phrase “not less than” qualifies, rather

than solidifies, the time period immediately following it. If a 5 year-old child

successfully bargains her parents for “not less than” ten minutes to finish playing, her

parents have exposed themselves to further haggling over when play time is actually

7
finished. Put another way, the “not less than” hedge provides wiggle room. Applied

here, the same phrase grants Pam’s Academy flexibility and discretion. Under a plain-

meaning interpretation, “not less than” five years could mean six, seven, or something

else. The three-year and five-year periods set forth in each restrictive covenant are

notional time limits only; they are malleable rather than concrete.

Whether Pam’s Academy intends to enforce any restraint beyond five or three years

is not the point. Nor does it matter what Pam’s Academy thought the covenant meant,

either before or during litigation. Servicemaster Industries, 254 Ill. App. 3d at 361. What

does matter is the Agreement’s plain language, as a reasonable person would

understand it. See Foxfield Realty, Inc. v. Kubala, 287 Ill. App. 3d 519, 523 (2d Dist. 1997)

(instructing that courts interpret unambiguous contracts according to “their ordinary

and natural meaning”). And no commonly accepted construction of the phrase “not less

than” results in the view that the circuit court endorsed: that the phrase simply means

nothing at all. See Robinwood, Inc. v. Baker, 425 S.E.2d 353, 357 (Ga. Ct. App. 1992)

(Birdsong, J., dissenting) (rejecting majority’s conclusion that term “not less than two

years” in employee’s restrictive covenant meant two years and stating that the

reasoning “resort[ed] to a less than commonly accepted ‘vernacular’ phrase

interpretation.”).

B. Eliminating the words “not less than” results in a contact laden with surplus
terminology.

Bolstering the plain-meaning rule is a well-known analogue. That is, courts presume

that words and phrases in a contract were not intended to be meaningless; courts

8
should, therefore, avoid interpretations that devolve contractual words or phrases into

mere surplasage. Berkeley Properties, Inc. v. Balcor Pension Investors, II, 227 Ill. App. 3d

992, 1002 (1st Dist. 1992).

The circuit court’s construction of Paragraphs 3 and 4 vitiated this rule of

construction. The June 28, 2017 Order makes it clear that the circuit court interpreted the

Agreement as if the phrase “not less than” were never inserted in either restrictive

covenant. (A1; R. C078). But the circuit court should have considered those words with

the remainder of the restrictive covenant’s language. Indeed, a central fulcrum of any

restrictive covenant is its durational limit. Tyler Enterprises of Elwood, Inc. v. Shafer, 214

Ill. App. 3d 145, 149 (3d Dist. 1991) (stating that a restrictive covenant is enforceable

“only if the time and territorial limitations are reasonably necessary to protect a

legitimate business interest”). It is not as if the circuit court examined inconsequential or

tangential terms when excising them from the Agreement; rather, it determined that an

indispensable enforceability tenet was filled with surplus terminology. That interpretive

approach is inconsistent with black-letter contract construction rules.

C. The strict-construction rule should have prevented the circuit court from
reading a firm durational limit into the restrictive covenants.

The circuit court’s error in failing to apply the no-surplus rule then led to a further

interpretive problem. It concerns the strict-construction principle, a vital element of any

non-compete enforcement suit where the reasonableness of the restriction is in question.

Restrictive covenants are a unique subset of contracts. And they have particular

rules of construction that courts must consider when determining whether or how to

9
enforce them. To that end, employment-based restrictive covenants “have long been

disfavored by the courts.” Aqua-Aerobic Systems, Inc. v. Ravitts, 166 Ill. App. 3d 168, 172

(2d Dist. 1988); Jefco Laboratories, Inc. v. Carroo, 136 Ill. App. 3d 793, 797 (1st Dist. 1985).

Courts, therefore, strictly construe non-competition covenants so as to preserve the

balance between the freedom to contract and the freedom to compete. Citadel Inv. Group,

LLC v. Teza Techs., LLC, 398 Ill. App. 3d 724, 734 (1st Dist. 2010). On that score, courts

resolve doubts against the restriction. Marwaha v. Woodridge Clinic, S.C., 339 Ill. App. 3d

291, 293 (2d Dist. 2003); Bloomington Urological Assocs., S.C. v. Scaglia, 292 Ill. App. 3d

793, 798 (4th Dist. 1997)

In sustaining Pam’s Academy’s contract claims, the circuit court inverted these rules

of construction. That is to say, it granted Pam’s Academy the benefit of the doubt,

absolved it of drafting zeal, and construed the covenants in a manner that favored

upholding the restraint. Had it applied the correct interpretive rule, the circuit court

would have found that the restrictive covenants in Paragraphs 3 and 4 were indefinite

and uncertain, a finding that would have merited dismissal.

D. This Court should apply the appropriate rules of construction to answer the
second certified question in the negative.

A straightforward application of these contract construction rules yields a different

result than the circuit court reached. Simply put, the phrase “not less than” a certain

time period does not mean a certain time period. That is, the restrictive covenants in

Paragraphs 3 and 4 of the Agreement were not for five and three years, but for

10
something indeterminate and singularly within Pam’s Academy’s discretion. This Court

should, therefore, answer the second certified question in the negative.

By doing so, the Court now is better suited to assess the central tenet of Marik’s

interlocutory appeal: whether temporally unlimited or uncertain restrictive covenants are

void. It is to this issue which Marik now turns.

III. Restrictive covenants of uncertain and unlimited duration are void and
unenforceable.

The first certified question provides as follows:

Do employment-based restrictive covenants with time

periods lasting “not less than” five and “not less than” three
years contain an enforceable and reasonable temporal scope
under Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL
App (3d) 140338, and Reliable Fire Equipment Co. v. Arredondo,
2011 IL 111871?

(A2-3; R. C155-56). The Third District has summarized the general rule: “Under Illinois

law, a postemployment restrictive covenant is enforceable only if it is reasonable in

geographic and temporal scope and it is necessary to protect an employer’s legitimate

business interest.” Prairie Rheumatology, 2014 IL App (3d) 140338, at ¶ 12

This principle stems from the Supreme Court of Illinois’ seminal non-compete case,

Reliable Fire Equipment Co. v. Arredondo. In that opinion, the Court reaffirmed the widely

adopted rule-of-reason test to determine post-employment covenants’ enforceability.

Reliable Fire, 2011 IL 111871, at ¶ 17. Specifically, courts only enforce covenants not to

compete that are: (1) no greater than required for protection of the employer’s

legitimate business interest; (2) do not impose an undue hardship on the employee; and

(3) do not injure the public. Id.

11
 Neither Prairie Rheumatology nor Reliable Fire had occasion to weigh in on

durationally indefinite or uncertain covenants like those in Paragraphs 3 and 4 of the

Agreement. But other Illinois courts have. And uniformly, they have concluded that

indefinite non-competes are invalid. Though none of them confronted the particular

“not less than” language that applies to Marik’s restrictions, the guiding principles are

just as applicable to this dispute and illustrate why this Court should answer the first

certified question in the negative.

The logical starting point is the Supreme Court’s decision in House of Vision, Inc. v.

Hiyane, 37 Ill. 2d 32 (1967). In that case, the lower court had decreed that the ex-

employee should be restrained from rendering competitive services for a period of five

years, even though that duration appeared nowhere in the underlying covenant not to

compete. Id. at 35. The Supreme Court on direct appeal held that an employer could not

enforce a non-compete clause without any time restriction since it imposed “unrealistic

boundaries in time and space.” Id. at 39. It did not sanction any sort of modification

whereby the trial court could, on its own, inject an appropriate temporal limit into the

underlying restraint. Id.

Just a year after House of Vision, the Appellate Court addressed a similar restrictive

covenant dispute, this time impacting an insurance salesman. The Fifth District in L&R

Insurance Agency, Inc. v. McPhail, 92 Ill. App. 2d 107 (5th Dist. 1968), relied on House of

Vision to find that a restrictive covenant with no durational limit was unenforceable. Id.

at 111-12. It reversed the circuit court’s judgment, which in effect created a time limit

(three years) not otherwise expressed in the underlying contract. Id. at 110, 115. And just

12
as in House of Vision, the Appellate Court found that the circuit court could not impose a

limitation on the restrictive covenant’s terms because it was “void and unenforceable.”

Id. at 113.

The Seventh Circuit, applying Illinois law, later addressed a durationally unlimited

non-compete clause in a dispute between the founder of Jimmy John’s restaurants and

his cousin. The case of Liautaud v. Liautaud, 221 F.3d 981 (7th Cir. 2000), involved an

unlimited agreement under which the cousin agreed not to expand any competing

sandwich shop business outside Madison, Wisconsin. Id. at 984. In affirming the district

court’s judgment, the Seventh Circuit found the non-compete was unnecessarily broad,

in part because it contained “no temporal restriction whatsoever.” Id. at 987-88.

Concluding that such a perpetual non-compete also harmed the public by reducing

competition, the Seventh Circuit stated that Illinois courts “generally have refused to

enforce noncompetition agreements that do not limit the duration of the restriction.” Id.

at 988; accord Unilog Content Solutions, LLC v. Thanx Media, Inc., No. 15 C 5899, 2016 WL

7212477, at *2-3 (N.D. Ill. Dec. 13, 2016) (granting motion to dismiss contract claim when

non-competition covenant had no durational limit); Cincinnati Tool Steel Co. v. Breed, 136

Ill. App. 3d 267, 276 (2d Dist. 1985) (concluding that non-disclosure agreement with no

durational limit was unenforceable).

The conclusion in Liautaud is both intuitive and consistent with the basic rule of

reason set forth in Reliable Fire. How can a restraint be “no greater than required for

protection of the employer’s legitimate business interest,” Reliable Fire, 2011 IL 111871,

at ¶ 17, if it lasts an indefinite period? See Petrzilka v. Gorscak, 199 Ill. App. 3d 120, 125

13
(2d Dist. 1990) (stating “noncompetition clauses should be limited in time so that the

agreement is no more restrictive than necessary…so as to prevent injury to the public

from a restraint on trade.”).

The logical force behind each of the Illinois decisions just summarized and cited

applies to Marik’s Agreement. Reforming or saving unlimited or uncertain non-

competes, as the circuit court did here, shifts litigation risk to the party least able to

avoid it. Whether the lack of a temporal limit is unabashedly obvious as in House of

Vision or the product of head-scratching opacity as was the case here, the concerns over

ex post judicial rewrites are identical.

Indeed, those concerns are so important that they are deeply rooted in public policy,

with courts concluding that extensive non-compete reformation—of the kind held

impermissible in L&R Insurance Agency, for instance—“would give employers an

incentive to draft restrictive covenants as broadly as possible.” Cambridge Eng’g, Inc. v.

Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437, 456 (1st Dist. 2007). It is one thing to

blue-pencil a restrictive covenant to excise a particular county if the employer no longer

sells there; it is quite another to reform a contact that is void at inception.

On that score, the First District further stated in Cambridge Eng’g that excessively

overbroad agreements lead to a “severe chilling effect” that leaves employees who are

“unschooled in the law” simply twisting in the wind. Id. That is to say, not only are

employees unable to assess whether restrictive covenants are enforceable in the first

instance, but they also have no reliable means to assess whether and how courts will

pare back overbroad restraints during the course of a lawsuit. See House of Vision, 37 Ill.

14
App. 3d at 39 (noting that oppressively broad contracts “impose upon an employee the

risk of proceeding at his peril, or [enduring] the burden of expensive litigation to

ascertain the scope of his obligation.”). This unpredictability magnifies hardship,

preventing employees from pursuing their highest and best use in the labor pool and

simultaneously crippling those who do challenge questionable restraints under the

weight of legal expense. See Lawrence & Allen, Inc. v. Cambridge Human Resource Group,

Inc., 292 Ill. App. 3d 131, 138 (2d Dist. 1997) (noting “hardship to employee” is factor to

consider in evaluating covenants’ reasonableness). Just as troubling, non-competes

operate as hiring and entrepreneurial deterrents, impacting a vast array of cases that

never get litigated. See Tradesman Int’l v. Black, 724 F.3d 1004, 1018 (7th Cir. 2013)

(Hamilton, J., concurring) (stating that “[i]n the many cases that will never get to court,

or where employees will be deterred even from trying to leave, the employer benefits

from the in terrorem effects of the oppressively and overly broad covenants.”).

An employer like Pam’s Academy, of course, stands on different footing. It is

optimally positioned to avoid drafting snafus. To be sure, it is the employer that knows

just what interest it is trying to protect. And it is the employer that knows how it should

go about protecting that interest. Being overzealous is no defense, certainly not when an

individual employee’s economic liberty is at stake and the public writ large stands to

suffer from reduced competition. These intuitive principles―central to a competitive

economy―necessitate careful scrutiny over employee restraints of trade, which Illinois

courts time and again have stated (with good reason) that they “abhor.” Center for Sight

of Central Illinois I, S.C. v. Deranian, 305 Ill. App. 3d 909, 915 (4th Dist. 1999).

15
 This case raises concerns that will crop up in a variety of fact patterns, even if the

particular phraseology at issue is unusual. Non-competes come in different shapes and

sizes, with lawyers hardly wedded to a standard template. Today’s “not less than”

qualifier could be replaced in some future dispute with a similar durational hedge like

“at least.” Or employers could try to punt to the trial court and ask for enforcement of a

non-compete contract “to the fullest extent permitted by law,” comforted that the court

just might enable the employer to retreat safely during the lawsuit to a more legally

acceptable position. See Tradesman Int’l, 724 F.3d at 1018 (Hamilton, J., concurring). And

some employers even may try to enforce a contract that is naked in its attempt to

impose a perpetual restriction, just like that in House of Vision. Rough contractual

guideposts and abstract suggestions are not a proxy for certainty. Courts should

demand that certainty.

Employees like Marik should not have to guess at how long a non-compete lasts.

Neither they nor counsel with whom they consult should be put to the screws of

disaggregating malleable terms in the hope that a court will agree with them. Instead, it

is the employer who should assess the need for a non-compete clause and draft it

objectively, with a fair balance that recognizes the various rights at stake. Illinois law is

pointed firmly towards ensuring a sensible result: non-compete clauses require firm

and certain durational limits, not ones embedded with discretionary language.

The Court should answer the second certified question in the negative.

16
 CONCLUSION
For the foregoing reasons, Callie Marik respectfully requests that this Court answer

each certified question in the negative and remand to the circuit court with instructions

to dismiss this action with prejudice.

Respectfully submitted,

CALLIE MARIK

By: /s/ Kenneth J. Vanko

Kenneth J. Vanko
Kenneth J. Vanko
Emily L. Langhenry
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
langhenry@ccmlawyer.com
Counsel for Defendant-Appellant

17
 CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Supreme Court Rules 341(a)

and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover,

the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of

compliance, the certificate of service, and those matters to be appended to the brief

under Rule 342(a), is 17 pages.

Respectfully submitted,

CALLIE MARIK

By: /s/ Kenneth J. Vanko

Kenneth J. Vanko

Kenneth J. Vanko
Emily L. Langhenry
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
langhenry@ccmlawyer.com
Counsel for Defendant-Appellant

18
 No. 3-17-0803

IN THE APPELLATE COURT OF ILLINOIS

THIRD JUDICIAL DISTRICT

)
PAM’S ACADEMY OF DANCE/FORTE ) Appeal from the Circuit Court of the
ARTS CENTER, ) Thirteenth Judicial Circuit, Grundy
) County, Illinois
Plaintiff-Appellee, )
) Case No. 16-LM-155
v. )
) Circuit Judge: Sheldon Sobel
)
CALLIE MARIK, ) Appeal from Order dated June 28,
) 2017
Defendant-Appellant. ) Certified Question granted
) November 8, 2017

APPENDIX

Description Appendix Page

1. June 28, 2017 Order A1
2. November 8, 2017 Order A2-3
3. First Amended Complaint A4-27
4. Table of Contents for Record on Appeal A28-A29
A1
 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
COUNTY OF GRUNDY, ILLINOIS

PAM'S ACADEMY OF DANCE/FORTE ) u nu-a-*-*

ARTS CENTER, ) NOV 0 8 2017
Plaintiff, )
'
^M„^ CfeUTE^
GRUNDY COUNTY CIRCUIT CLERK
v ) Case No. 16 LM155
)
CALLIE MARIK, )
)
Defendant. )

ORDER

THIS CAUSE comingto be heard on the Defendant's Motion to Certify for

Interlocutory Appeal Questions from Denial of Motion to Dismiss, due notice having

been given and the Court being fully advised. IT IS HEREBY ORDERED:

1. The Court hereby finds that the June 28,2017 Order involves questions of law

as to which there are substantial grounds for difference of opinion.

2. The Court further finds that an immediate appeal from the June 28,2017

Order may materially advance the ultimate termination of the litigation.

3. Accordingly, the Court hereby identifies and certifies the following questions

of law for interlocutory appeal under Supreme Court Rule 308(a):

a. Do employment-based restrictive covenants with time periods lasting

"not less than" five and "not less than" three years contain an

enforceable and reasonable temporal scope under Prairie RJwumatology

Assocs., S.C. v. Francis, 2014IL App (3d) 140338, and Reliable Fire

A2
A3
A4
A5
A6
A7
A8
A9
A10
A11
A12
A13
A14
A15
A16
A17
A18
A19
A20
A21
A22
A23
A24
A25
A26
A27
 No.3-17-0803

IN THE APPELLATE COURT OF ILLINOIS

THIRD JUDICIAL DISTRICT

)
PAM’S ACADEMY OF DANCE/FORTE ) Appeal from the Circuit Court of the
ARTS CENTER, ) Thirteenth Judicial Circuit, Grundy
) County, Illinois
Plaintiff-Appellee, )
) Case No. 16-LM-155
v. )
) Circuit Judge: Sheldon Sobel
)
CALLIE MARIK, ) Appeal from Order dated June 28,
) 2017
Defendant-Appellant. ) Certified Question granted
) November 8, 2017

TABLE OF CONTENTS FOR RECORD ON APPEAL

Date Description Record Page(s)

1. 10/14/16 Plaintiff’s Complaint C001-5
2. 1/11/17 Appearance filed by Defendant (with C006-8
Notice of Filing)
3. 1/11/17 Defendant’s Section 2-615 Motion to C009-18
Dismiss, Memorandum in Support of
Section 2-615 Motion to Dismiss
4. 4/5/17 April 4, 2015 Court Order C019
5. 4/7/17 Plaintiff’s First Amended Complaint (with C020-44
Notice of Filing)
6. 4/25/17 Defendant’s Section 2-615 Motion to C045-59
Dismiss, Memorandum of Law in Support
of Section 2-615 Motion to Dismiss (with
Notice of Motion and Notice of Filing)
7. 6/1/17 Plaintiff’s Response to Defendant’s 2-615 C060-66
Motion to Dismiss (with Notice of Filing)

A28
8. 6/14/17 Defendant’s Reply Memorandum of Law in C067-77
Support of Section 2-615 Motion to Dismiss
(with Notice of Filing)
9. 6/28/17 June 28, 2017 Court Order C078
10. 8/8/17 Defendant’s Motion to Certify for C079-125
Interlocutory Appeal Questions Arising
from Denial of Motion to Dismiss, (with
Notice of Motion), Memorandum of Law in
Support of Motion to Certify for
Interlocutory Appeal Questions Arising
From Denial of Motion to Dismiss (with
Notice of Filing)
11. 8/23/17 Defendant’s Answer to Plaintiff’s First C126-42
Amended Complaint, Affirmative Defenses
and Counterclaim (with Notice of Filing)
12. 9/26/17 Plaintiff’s Response to Defendant’s Motion C143-47
to Certify for Interlocutory Appeal
Questions Arising from Denial of Motion to
Dismiss
13. 9/26/17 Plaintiff’s Response to Defendant’s C148-49
Affirmative Defenses
14. 11/1/17 Defendant’s Reply Memorandum in C150-54
Support of Motion to Certify for
Interlocutory Appeal Questions Arising
from Denial of Motion to Dismiss (with
Notice of Filing)
15. 11/8/17 November 8, 2017 Court Order granting C155-56
Appeal

A29
 E-FILED
Transaction ID: 3-17-0803
File Date: 2/14/2018 12:01 PM
Barbara Trumbo, Clerk of the Court
APPELLATE COURT 3RD DISTRICT
No. 3-17-0803

IN THE APPELLATE COURT OF ILLINOIS

THIRD JUDICIAL DISTRICT

)
PAM’S ACADEMY OF DANCE/FORTE ARTS ) Appeal from the Circuit Court of the
CENTER, ) Thirteenth Judicial Circuit, Grundy
) County, Illinois
Plaintiff-Appellee, )
) Case No. 16-LM-155
v. )
) Circuit Judge: Sheldon Sobel
)
CALLIE MARIK, ) Appeal from Order dated June 28, 2017
) Certified Question granted November
Defendant-Appellant. ) 8, 2017
)

NOTICE OF FILING

To: Zachary B. Pollack

Sabuco, Beck, Hansen, Massino & Pollack P.C.
405 North Liberty Street
Morris, Illinois 60450
zac@sabucobeck.com

Please take notice that on February 14, 2018 we electronically filed with the Clerk
of the Appellate Court of Illinois, Third Judicial District the following:

1. Brief of Defendant-Appellant

True and correct copies of which are attached hereto and served upon you.

CALLIE MARIK

By: /s/ Kenneth J. Vanko

Counsel for Defendant-Appellant
Kenneth J. Vanko
Emily L. Langhenry
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
langhenry@ccmlawyer.com

{00395268.DOCX /v. 1 }
 CERTIFICATE OF SERVICE
The undersigned hereby states that she served the referenced documents to the
parties listed in the attached service list via e-mail and regular mail by depositing the
same in the mail chute located in Lisle, IL on or before 5:00 p.m. this 14th day of February,
2018.

By: /s/ Nikki Matthiscyk

{00395268.DOCX /v. 1 }