range good morning your honor so i'm going to discuss just really money issue today and this time is reliance brief for the remaining point but i'm going to discuss what i think it's most important and likely dispositive issue on  that is the key issue in this case i want to i supreme court in two thousand and eleven in the reliable case changed only law it said that no longer are we going to be limited to just to protect the interests prior to reliable in order to uphold a restrictive covenant and not compete or not solicitation the plaintiff had to prove near permanent customer relationships was was a term of art difficult to prove was not the same as goodwill or truly confidential information strip confidential information sense essential information of the trade secrets act if you don't have one of those one of the other you could enforce your restrictive covenant reliable said no specifically said that test is gone it doesn't mean that if you have a near permanent relationship that's bad no if you can show the old your permanent relationship or the old confidential information you have of you you have a legitimate interest to uphold a restrictive covenant but if you can't that's not the end of the inquiry it's not dispositive you have to look at the totality of the circumstances in order to determine whether the case before the court has the employer has a digital meant interest to protect through a restrictive covenants the totality of the circumstance court said there's no that could look at various factors but they're not dispositive they're not being exclusive and essentially right now we have a blank slate in illinois as to what constitutes legitimate interest in which to uphold a restrictive covenant there's very little virtually no law on that discussion what we do know is you can't simply end the inquiry if you didn't find your permanent relationships or confidential information but that is exactly what is judged hold and you can make that is very clear if you look at his his statement which is an appendix from his opinion appendix page thirty two and i'm quoting instant did not prove a near permanent relationship between instant and its clients nor this instant prove the employed defendants gained access to nonpublic confidential information during the course of their employment consequently the court discussion of extensive evidence what did he overlook he looked at the a lot i think what he overlooked the overlook that those factors the evidence whether they by themselves even if they don't show in your permanent relationship even if they don't show strict confidential information whether they constitute by the totality the certain facts of that i'm i'm looking for something more specific what does judge holderman mess you must be right legal not readily available information with respect to these candidates i think incentives in the as a nation staff in business they get fined i keep professionals they spent significant time and effort developing  not just clients but candidates they tested these candidates they hired experts to test the candidates to determine their skills and probably resume you know presumably they had value right to yes that's what we get paid for but particularly in light of judge holder moon's detailed findings about how information in this industry becomes stale very quickly it's a little it's a little hard relationship of the relationship with the coyotes and the candidates and instead itself was sufficient other states recognize that relationship in fact judge told them and made a comment he said that the client the court actually found that you can find it's on repellent and the appendix page thirty he says clients are generally did business with whom they had relationships those relationships this is that was the end of his quote those relationships were developed an instance time and an instance expense he did not ask this question whether those relationships although not permanent under the old law whether those relationships were a sufficient  a sufficient interest of the company to protect if he had analyzed it that way he would have gone i believe the way the most states have gone that when your your sales staff develop personal relationships good will relationships you can protect those you can protect those through a restrictive coven just told them and never made that determination never asked that question he just said these don't show near permanent relations these facts do not show strictly confidential information the wrong legal test you know on the on the customer relationships like got to say i never actually used to do a lot of this stuff these this kind of litigation and i don't think i've ever seen covenants in a case like this in an industry like this where there's no apparent loyalty by clients they work with five or six or ten different competing placement agencies so it's a little hard to see that kind of goodwill bond here while judge the staff in industry prior to reliable found the way that you found they certainly those relationships do not show up as near a permanent relationship on the on the there's no question about that facts here though indicated and judge told them unrecognized when he said that clients do business with those  like you develop relationships they had lunches they dined on they cooked in the ballgame did social events they had happy hours they were required to develop relationships they were developed over time that doesn't mean they're exclusive that doesn't mean that they don't use other people but i don't know of any other state that would require very strict requirements of near permanent relationship but on the idea and the fact is we don't know right now there hasn't been a lot of law developed what the  circumstances mean but we know what it doesn't mean and what it doesn't mean or what judge told him and here you can't get away from the fact that he only judge these facts through his own lands of near permanent relationships and confidential information cern i'm concerned about your statement the you are working with a blank slate here both because obviously our job is simply to to predict as best we can with the illinois supreme court would do with this yes it's a question but also because this is an area of law restrictive covenants where predictability is incredibly important to both sides to the employee who's thinking about departing to the employer who's trying to do to keep employees or to a new employer who wants to hire somebody and if we've got this blank slate totality of the circumstances test in illinois how does anybody decide it vies a client with any confidence whether a covenant will be enforced very difficult and in fact a lot of the writings in blogs and articles after reliable raise the point that that you're you're on a raise but that doesn't change the fact that that that's what the illinois supreme court did they specifically said we are not going to rely on those two they specifically said there's a lot of factors but we can imagine all the factors that are to be considered that has to be worked out predictability may hit may be a problem now i don't say it's not but it's a problem that the eleanor's supreme court recognized and didn't care or still said that the fairest way is that look at the totality of the circumstances having said that we have some general idea there's still predictability here there's still predictability you need some legitimate interest probably some unique qualification in the employee you look around the other country what they use good will is something that most states use unique qualifications of an employee is is another factor the business information even though it may not be technically fit under the trade secrets secrets act we had valuable business information here which the record shows companies pay ten thousand dollars a month to get the same kind of information that instant had developed with respect to with candidates information which defendant meek admitted that she intended to use because would be easier than compiling to herself frankly that's should be sufficient a sufficient secret business information that could be protected whether or not it has a six month life a three month life it certainly has it certainly is very valuable to a startup which is what happened here connect with the startup and all of a sudden within two months have to they're up and running they're doing business and they're getting significant business from our clients from instance clients there is no way that could have happened if it but for the fact that they had access to and used this information and had the relationships they had those relationships i would not say at this i'm sorry  question of consideration which comes up for you yeah you think the fyfield case was decided correctly your honor i argued that case i won that case and now you know like abraham lincoln was for the illinois supreme court and said judge mr lincoln weren't you here two months arguing the opposite point and he said yeah but two months ago i was wrong here's what i think i think there's good argue both sides if i feel i argued for predictability i argued that the two years is is we need that bright line because then everybody knows what's going on and a company can't hire somebody and then fire them at the last minute i think is good arguments for there's good arguments against it and i recognized even at the time i think ultimately the illinois supreme court if it takes this case and it did not take five feel but if it takes that it will probably the tally of circumstances to consideration so i think it's a it's close you can argue both sides but my feeling now is that the illinois supreme court eventual e will as most of the district court case judges have have ruled so far it will go with it will apply to a tally of circumstances to the consideration so you were persuasive but you were wrong i was persuasive but i was  be considered adequate consideration an employer employee must work for at least two years i'm sorry judge what what you asked me why i would reject that yes while the reason for that is a situation that comes up and this is what a of the people who practice in the field talk about what happens to somebody who works one year eleven months and twenty nine days and then he or she quits technically under five field that that restrictive covenant w disappear now there to could be arguments it could be an implied duty of good faith and fair dealing where somebody putting at that time might not get the benefit of at that time that's certainly a possibility but but there is problems with fyfield there's problems with  bright line and there's problems with out about bright line what we have seen is the only supreme court in this area in the area restrictive covenants seems to be going not too bright lines it's not doing there they're getting rid of some of the predictability but they're doing it because they especially troubling but if it were here's where it comes up where they recognize it i'm not sure they do it exactly in your situation that your time up and what that only courts allow the covens modified if they're overly broad but not if basically they're done moment before you began i probably should have said this right at the outset there i notice that the university of chicago is a client of both sides and all of course teach part time at the university of chicago i thought about this standard it seems to me that the first thing we need to look at is simply what the district court said it was doing at the time in the district court clearly and repeatedly referenced the reliable fire standard record turman after a six day trial and in no time during that trial often times i think in a way in a case where there's an issue of what standard was use there would have been some evidence excluded or some findings that limited or focused to try to a certain way to a certain standard it was not none of that even suggested by the appellants here there was no limitation due to any other standard because there was  circumstances as determined by the trial courts in that memorandum in opinion so simply referring to the the second sentence where the court says makes reference to those two historical standard it was proper for the court the district court to reference those two historical standards because reliable fire doesn't throw everything up for grabs at this point what will have a fire specifically says is that what the court court is to look at those two historical factors which is the near permanent customer relationships in the confidential information that still is reliable fire and reliable fire says that the historic case law with respect to those factors still remains intact  there is not a blank slate here and i think there is some desire for predictability by the illinois supreme court that should remain in these cases and that's why it's specifically stated that those  were many some of them that included the non exclusive relationships the staffing firms using multiple firms the fierce competition the candidates using internet job boards and social media the business that the skills council refer to skills what the court said was what you need here is interpersonal skills in a strong work the work ethic that's what this business is about it's not on superior information it talked about it findings that for every ten job openings instead may place one candidate so those those places are going to many others in the competitors in the industry  some of the information that instant seeks to protect is not an easy task changeable by the public like the hot candidate or roll off lists and information about the candidate skill sets why should we treat that information is confidential well individuals departed so there was no evidence that these individuals even had a role for this or hot list at the time of their departure and when i had seen them in any recent time but the second part of that is that i think you told them and found that there was less work available in generic information this idea that it takes ten thousand dollars a month yes a company like career builder may charge ten thousand dollars a month but every company subscrib those services in the industry including instead it's readily available information and a roll of clips for example is when someone's role coming off a job that's the the terms of someone's coming off placement those individuals want to get placed again so what those individuals are doing are putting their resumes out there on dice or monster or other on linked in and those types of thing to make it known giving it to other staffing firms to make it known hey i want to be placed again so the r simply when someone's coming off the job and that's not protected poll information at all the hot candidate list it had a very generic even the old ones they were presented very generic information there's reference to it the database instead never even presented that database to the clerk so you know that there was testimony that that's generic information as well available through public means through the dice monster for linked in but it's also was never presented so this information that they claim is so important confidential or or was was two lists that were presented to the court and the add to the process what they do that well i mean we're reading told that you know nobody has any loyalty to anybody the leave the same candidates are working with multiple placement firms the same employers are working with multiple placement firms what value to the placement firms they had and how does an employer decide which placement firm to pay if it hires somebody who is listed with ten different placement firms well and that and that last and having those relationships where you're working hard to get those candidates as soon as as soon as possible and that's the industry and th instead it was for example just a business to the size they connect with to the size of instead immediately doesn't suggest that at all there was no testimony about that they didn't support that in other words that information is out there for people to start in the staffing business if they if they so choose that's the image that's that's the nature of the availability of the information  substantial employment and it determined that that is two years and it didn't actually determine that historically that's been looked at as his two years there's been a second case counsel referred to the cumulus case which was a central district of appellate districts that have recently applied that the two year bright line rule that that predictability is important and that substantial period of time means two years and that doesn't mean employer can't otherwise have an forcible covenant this is the situation where the only thing being offered by the employer is at will employment so an employer could offer other consideration that's not what is contended here or in the fyfield case and in those circumstances it's it's two years and it makes sense because if you're not offering anything but at will employment why would someone  one year or one half your two years those are those those have to be treated differently because you're not offering anything else but what employment what at will employment so in that circumstance the no to the only in the most recent have said two years those are the best predictors of what the illinois supreme court would do just say that reliable flyer suggests that the court is moving towards a more of a totality of circumstance test i don't think it out by looking at reliable player because reliable fire says it refers to two separate things it refers to the fatality circumstances test applied to the legitimate business interest and it has to has to have consideration consider reliable supplier as instructing those courts to apply the totality of circumstances or other test to what it means to have a substantial period of  representative instance like now gee that mystifies e o was paid ten thousand dollars towards a forty two thousand dollars bonus that she earned we believe that it admission of the earning of that forty two thousand dollars bonus therefore thirty two thousand of which remains unpaid along with interest experience fees and the contention that somehow  the language in a in a letter agreement written by lay people it said that the bonus relates to this this target and that target when those targets have percentages on it and those percentages thirty five percent cent of the total put one hundred twenty