case, we will not exercise our discretion to “blue-pencil” the contract, but rather we hold that the
covenant not to compete as executed is unenforceable as a matter of law. In so doing, we hope to
encourage employers to write contracts that are more narrowly tailored to meet their individual
needs, rather than overly broad covenants which restrict competition in the marketplace for
qualified employees. See also Trailer Leasing, 1996 WL 392135 at *4; Telxon, 720 F. Supp. at
666.

Therefore, based on the arguments raised in the briefs and for the reasons stated above,
we declare that the restrictive covenant contained in Section LX of the Employment Contract is
overbroad in that it contains no geographic limitation on its scope. Accordingly, we conclude
that the restrictive covenant is unenforceable as a matter of law and therefore void. The
plaintiffs’ motion for summary judgment is granted.

il. Motion to Dismiss

Concurrent with the plaintiffs’ motion for summary judgment, defendant Qualitek also
filed a motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1). Specifically, Qualitek alleges that the plaintiffs have failed to
establish that the amount in controversy in this declaratory action is at least $75,000, as required
by 28 U.S.C. § 1332. We disagree.

In a declaratory judgment action, we measure the amount in controversy by the value of
the “object of the litigation.” Hunt v. Washington State Apple Advertising Comm'n, 432 US.
333, 347, 97 S.Ct. 2434 (1977). “[W]hen deciding whether a claim meets the minimum amount
in controversy, the plaintiff's evaluation of the stakes must be respected.” Barbers vy, Bishop, 132

F.3d 1203, 1205 (7th Cir. 1997). If the amount in controversy is uncontested, the court “will

13


Shortly after his departure from Qualitek, Roberge contacted Amtech to inquire about
potential employment opportunities with that company. In so doing, Roberge disclosed to the
relevant individuals at Amtech that he had signed the Employment Contract with Qualitek and
that said contract contained the covenant not to compete. As a result of the discussions between
Roberge and Amtech, and apparently because Amtech was impressed with Roberge’s
qualifications, Amtech offered Roberge a position as Product Support Manager. However,
because Amtech was concerned about the restrictions contained in the Employment Contract,
Amtech’s offer of employment to Roberge was and continues to be conditioned upon either
Qualitek’s written authorization that Roberge may engage in such employment with Amtech or a
declaration from a court of competent jurisdiction that the covenant not to compete is
unenforceable.

On June 14, 2001, in an attempt to avoid a legal dispute, Amtech wrote to Qualitek
requesting confirmation that Qualitek did not object to the employment of Roberge by Amtech.
On June 19, 2001, Qualitek responded to Amtech’s letter by stating that they did in fact take
issue with Roberge’s potential employment at Amtech. Specifically, in its June 19 letter,
Qualitek stated “we intent [sic] to pursue any breach of our Agreement in all legal avenues that
are open to us.... Mr. Roberge, having been privileged to proprietary information, and therefore
under the circumstances, wil] put us in a disadvantageous position if directly employed by our
competitor.”

Notwithstanding the legal position taken by Qualitek, Roberge has accepted Amtech’s
conditional offer of employment. However, in light of Qualitek’s refusal to consent to his

employment with Amtech, he is unwilling to commence employment with Amtech if the


The logical place to begin this analysis is of course with the actual text of the agreement
entered into by Roberge and Qualitek. The first part of Section LX contains a disclosure covenant
in which Roberge agreed not to disclose, either during or after his employment with Qualitek,
any confidential or proprietary information he received while employed there. Roberge has
stated in his declaration that he never came into contact with any confidential or proprietary
information while employed at Qualitek, and Qualitek has not identified any confidential
information, trade secret, or secret process shared with Roberge during his employment. Rather,
Qualitek has only argued that Roberge was familiar with certain undisclosed research
information as well as the particular product needs of some of Qualitek’s larger customers. As
this type of information was readily accessible to not only Qualitek employees but also to
Qualitek customers (particularly the product requirements of those customers), we cannot
justifiably restrict Roberge’s future employment in the solder products industry on this basis.
This conclusion is further bolstered by Qualitek’s inability to identify even one trade secret or
secret process which Roberge was allegedly privy to that could endanger Qualitek’s competitive
advantage in the solder products industry.

That having been said, we next turn to the second part of Section IX of the Employment
Contract, which is the actual covenant not to compete. It states that “upon termination of .. .
employment for any cause whatsoever, [Roberge] will not either directly or indirectly... engage
in competition with [Qualitek] for a period of two (2) years.” Even granting this language the
most generous interpretation, there is no way it can be read other than to constitute a blanket
prohibition on competition. The restrictive covenant is not limited to a particular type of activity,

such as the solicitation of customers Roberge had contact with while at Qualitek, nor does it


the evidence is such that a reasonable jury could return a verdict for the non-moving party.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548 (1986).

In making this determination, the Court must draw every reasonable inference from the
record in the light most favorable to the non-moving party and should not make credibility
determinations or weigh evidence. Association Milk Producers, Inc. v. Meadow Gold Dairies,
Inc., 27 F.3d 268, 270 (7th Cir. 1994). The non-moving party must support its contentions
with admissible evidence and may not rest upon mere allegations in the pleadings or
conclusory statements in affidavits. Celotex, 477 U.S. at 324. The plain language of Rule
56(c) mandates the entry of summary judgment against a party who fails to establish the
existence of an element essential to its case and on which that party will bear the burden of
proof at trial. The production of only a scintilla of evidence will not suffice to oppose a
motion for summary judgment. Anderson, 477 U.S. at 252.

In this case, the plaintiffs have argued they are entitled to summary judgment on their
complaint for declaratory judgment because the competition restrictions contained in Section IX
of the Employment Contract are unreasonably broad according to Illinois law, and thus void and
unenforceable. Specifically, the plaintiffs argue that, because this particular restrictive covenant
contains no geographic limitation, it essentially restricts Roberge’s ability to eam a living in his
chosen profession not only in this country but aiso potentially anywhere else in the world for a
period of two years. As a result, plaintiffs contend that the covenant not to compete is
unreasonably broad, against public policy, and void as a matter of law.

The defendant counters these arguments by suggesting that, though the restrictive

covenant admittedly contains no geographic limits, it is enforceable because it was “reasonably”


restrictions contained in the Employment Contract are found to be enforceable and such
employment would constitute a breach of the Employment Contract. Likewise, Amtech is
unwilling to employ Roberge without the assurance that doing so is lawful and not prohibited by
the Employment Contract. Consequently, since June, 2001, Roberge has been working in
Canada for substantially less than he would have been making at Amtech.

In August, 2001, Roberge and Amtech filed a declaratory judgment action against
Qualitek, pursuant to 28 U.S.C. § 2201, seeking an order from this Court declaring the covenant
not to compete in the Employment Contract void and unenforceable. The intended effect of this
declaratory judgment would be to permit Roberge to commence his position with Amtech.
Concurrent with the filing of the complaint for declaratory judgment, Roberge and Amtech filed
the instant motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

DISCUSSION
1 Motion for Summary Judgment

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions of file, together with affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The party seeking summary judgment carries the initial burden of
demonstrating an absence of evidence to support the position of the non-moving party. Doe v.
R.R. Donnelley & Sons, Co., 42 F.3d 439, 443 (7th Cir. 1994), The non-moving party must
then set forth specific facts showing there is a genuine issue of material fact and that the
moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477

U.S. 242, 252, 106 S.Ct. 2505 (1986). A genuine dispute about a material fact exists only if


restrictive covenant if the time and geographical limitations are reasonably necessary to protect a
legitimate business interest of the employer. Trailer Leasing Co. v. Associates Commercial
Corp., 1996 WL 392135, at *1 (N.D. Ill. July 10, 1996) (applying Illinois law); Abel v. Fox, 274
Ill. App. 3d 811, 654 N.E.2d 591, 593 (Ill. App. Ct. 1995). Geographic limitations on the scope
of a restrictive covenant are significant because Illinois courts will not enforce agreements that
restrict an employee’s ability to work for a competitor in any manner whatsoever. See Telxon
Corp. v. Hoffman, 720 F. Supp. 657, 665 (N.D. Ill. 1989); North Am. Paper Co. v. Unterberger,
172 Ill. App. 3d 410, 526 N.E.2d 621, 623 (Ill. App. Ct. 1988).

This is not to say, of course, that all restrictive covenants which do not contain
geographic limitations are per se unenforceable. Illinois courts have recognized a distinction
between those agreements that contain a blanket prohibition on competition and those that limit
an employee from engaging in particular types of activities with competitors after they leave the
employ of the former employer. The most prevalent of these “activity restraints” is the soliciting
of the former employer’s customers. See Eichmann v. Nat’l Hosp. and Health Care Services,
Inc., 308 Ill. App. 3d 337, 719 N.E.2d 1141, 1147 (Ill. App. Ct. 1999). In Eichmann, the Illinois
Appellate Court noted the difference between these types of restrictive covenants by stating that
the “distinction between a blanket prohibition on competition and an activity restraint is
important because the lack of a geographical restriction does not automatically invalidate a post-
employment restraint where the geographical prohibition is qualified by an activity restraint.” Jd.
(emphasis in original.) The issue then in the instant case is whether the restrictive covenant
contained in Section IX of the Employment Contract is a blanket restriction or an activity

restraint.


2° Mimute Ores Form (06/97)

United States District Court, Northern District of Ilinois

¢
Name of Assigned Jud; Sitting Judge if Oth
| vo Magistrate Judge Wayne R, Andersen than Assigned Judge
CASE NUMBER 15509 DATE 1/26/2002
CASE Roberge et al vs. Qualitek Internat’], Inc.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) im Answer brief to motion due___._ Reply to answer brief due

(4) QO Ruling/Hearingon__setfor___at

(5) o Status hearing[held/continued to] [set for/re-set for]on___——ssetfor at

(6) oOo Pretrial conference[held/continued to] [set for/re-set for]on___—setfor__—at__
(7) o Trial{set for/re-set for]on____at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOPRCP4(m) Cl General Rule 21 CFRCP41(a)(1) [ FRCP41(a)(2).

qo) [Other docket entry] Enter MEMORANDUM, OPINION AND ORDER: For the foregoing reasons,
we grant the plaintiffs’ motion for summary judgment [7-1] pursuant to FRCP 56. The restrictive covenant
not to compete included in Section IX of the Employment Contract is unenforceable as a matter of law and
therefore void. If Roberge and Amtech still wish to proceed with their employment relationship, they are
free to do so. The defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant te FRCP
12(b)(J) [14-1] is denied. This is a final and appealable order. This case is terminated. The ruling date of

2/28/2002 is hereby stricken.

(1) of [For further detail see order attached to the original minute order,]

No notices required, advised in open court.

No notices required.

number of notices

Document
Number:

Notices mailed by judge's staff. KAN 28 2002

Notified counsel by telephone.

Copy to judge/magistrate judge.

couttoom HE LY 82 wy 2p due
TSA deputy’s .
initials OF Hoots
“Dlichtime rédetled in
central Clerk’s Office naling deputy nits

dh aocxeted

vo | Docketing to mail notices. C [

V_ | Mail Ao 450 form. Lunoa 4 ORISIa “sin wel! A
ch)



geographic constraints on competitive activities .. . and the further restriction from association
with a corporation whose activities are competitive in the continental United States are patently
beyond the needs of the employer to protect his interest and are unduly harsh on the employee”);
Egnell, Inc. v. Weniger, 94 Ill. App. 3d 325, 418 N.E.2d 915, 918 (Ill. App. Ct. 1981) (pursuant
to restrictive covenant which contained no actual geographic limitation, employee would not
have been permitted to work anywhere in the world for a firm that competed with employer
somewhere in the U.S. “The burden placed on [employee] far exceeds what would have been
necessary for the protection of plaintiff's interest.”).

Given this compelling authority, we reject Qualitek’s argument that the lack of
geographic limitation in Section IX is acceptable because it is necessary to protect Qualitek from
the potential loss of some its customers located anywhere throughout the world. The covenant
not to compete is so broad that, like in Tex/on, it is conceivable that Roberge would be prohibited
from working as a janitor for a company that, either directly or indirectly, competed with
Qualitek in the solder products industry. There is simply no legitimate business interest of
Qualitek that can justify such a ridiculous result.

Further, Qualitek attempts to avoid the inevitable in this case by suggesting in its papers
that there is at least one genuine issue of material fact which prevents our granting of the
plaintiffs’ motion for summary judgment. Specifically, Qualitek contends that there is a material
factual dispute concerning the execution of the Employment Contract. Roberge asserts that he
did not actually sign the Employment Contract until January, 2000, at which time he alleges that
he was required to post-date his signature to November 8, 1999. Qualitek, on the other hand,

argues that Roberge actually signed the contract on November 8, 1999 (the date indicated next to

il


contain any other activity restraint. Rather, it unequivocally states that Roberge cannot work for
any company that is a direct or indirect competitor of Qualitek’s, regardless of where that
competitor operates. In fact, Qualitek has conceded in its papers that they view the covenant not
to compete as having global effect, suggesting that if Roberge wanted to work for a company in
Japan that competes with Qualitek in the solder products market, he would be unable to do so.
But see Unterberger, 526 N.E.2d at 625; Dryvit Sys., Inc. v. Rushing, 132 Ill. App. 3d 9, 477
N.E.2d 35, 38 (Ill. App. Ct. 1985) (“the unlimited geographic constraints . . . are patently beyond
the needs of the employer to protect his interest and are unduly harsh on the employee.”)
Qualitek attempts to defend its restrictive covenant by arguing that, even though there is
no geographic limitation in the restrictive covenant, it is nevertheless still enforceable because it
is necessary to protect its business interests not only in this country but in other countries around
the world. Qualitek supports this broad argument by stating that the area in which Roberge is
restricted from working (i.e. the planet Earth) is “coextensive with the area in which the
employer is doing business.” (Def. Response at 7.) In particular, Qualitek asserts that because it
has “customers globally and has competitors throughout the United States . . . [iJnserting an
arbitrary boundary such as prohibiting Roberge from competing with Qualitek in the state of
Illinois . .. would not protect Qualitek’s legitimate interests.” (/d. at 8.) While this is perhaps
the most logical argument the defendant could make in response to the plaintiffs’ motion, it is a
position that has been rejected countless times by both state and federal courts in Illinois. See,
e.g., Telxon, 720 F. Supp. at 664-65 (motion for preliminary injunction denied because restrictive
covenant lacking any identifiable geographic limitation would have even prevented employee

from “working as competitor’s janitor”); Dryvit Sys., 477 N.E.2d at 38 (“the unlimited

10


drawn to protect Qualitek’s legitimate business interests. In particular, Qualitek argues that its
covenant not to compete is legitimate because it does business nationwide, and the purpose of the
restriction is to protect Qualitek from losing any customers, wherever they may be, to former
employees who presumably have gained special knowledge and familiarity with the customers’
needs. In the alternative, Qualitek requests that if we determine that the restrictive covenant is
overly broad as a matter of law, then we should “blue-pencil” or modify the Employment
Contract to either prohibit Roberge from working at Amtech or prohibit him from having contact
with Qualitek’s customers that are not customers of Amtech. For the following reasons, we
conclude that the plaintiffs are entitled to judgment as a matter of law on their complaint for a
declaratory judgment.

At the outset, we note that both parties agree that the Employment Contract contains a
choice of law provision which states that the agreement “shall be construed under the laws of the
State of Illinois.” (Employment Contract at 3.) Consequently, under Illinois law, the
enforceability of a covenant not to compete is a question of law, and thus amenable to resolution
by means of a motion for summary judgment. See Lyle R. Jager Agency, Inc. v. Steward, 253 Ill.
App. 3d 631, 625 N.E.2d 397, 400 (Ill. App. Ct. 1993).

In Illinois, restrictive covenants are disfavored in the law and closely scrutinized because
they are repugnant to the public policy encouraging an open and competitive marketplace.
Bishop v. Lakeland Animal Hosp., 268 Ill. App. 3d 114, 644 N.E.2d 33, 36 (Ill. App. Ct. 1994).
This is especially true in the case of covenants not to compete, which Illinois courts have held to
be restraints on trade. Office Mates 5, North Shore, Inc. v. Hazen, 234 Ill. App. 3d 557, 599

N.E.2d 1072, 1079 (Ill. App. Ct. 1992). As a result, courts will only enforce the provisions of a


record, Roberge understood that his employment with Qualitek was contingent upon his
agreement to the Employment Contract as drafted. While the exact date of the execution of the
Employment Contract is in dispute, both parties agree that Roberge eventually did sign the
contract.

Section IX of the Employment Contract contains, inter alia, a restrictive covenant not to
compete, which is at issue in the instant case. In relevant part, Section IX provides:

that upon termination of such employment for any cause whatsoever, [Roberge]
will not either directly or indirectly, for himself or for any third party, without
prior written authorization form [sic] [Qualitek], engage in competition with
[Qualitek] for a period of two (2) years.
The Employment Contract also contains a provision which states that during his employment at
Qualitek, and at all times thereafter, Roberge must “hold in secrecy .. . [eJach and all of
[Qualitek’s] trade secrets, including secret processes, secret machines, secret formulas, and secret
devices, now known to [Roberge] and those disclosed or divulged to [Roberge] by [Qualitek].
(Employment Contract, Section VIII.) Roberge performed his duties at Qualitek, pursuant to
these conditions, from November, 1999 until April, 2001.

However, on or about April 12, 2001, Roberge’s employment with Qualitek was
terminated without cause, He was told that he was being laid off due to an industry slowdown
and lack of available work at Qualitek. After his discharge from Qualitek, Roberge, as requested,
returned the laptop computer that had been issued to him by Qualitek, and he stated in his
declaration that he did not keep any documents concerning his employment at Qualitek other

than copies of his job offer letter and the Employment Contract he had signed. (Roberge Decl. at

413.)


accept the plaintiff's good faith allegation of the amount in controversy unless it ‘appear{s] to a
legal certainty that the claim is really for less than the jurisdictional amount.”” Rexford Rand
Corp. v. Ancel, 58 F.3d 1215, 1218 (7th Cir. 1995) (quoting St. Paul Mercury Indemnity Co. v.
Red Cab Co., 303 U.S. 283, 289 (1938)); see also Herremans v. Carrera Designs, Inc., 157 F.3d
1118, 1121 (7th Cir. 1998). However, when the amount in controversy is challenged, the party
asserting jurisdiction is required to submit “competent proof” that the amount in controversy
exceeds $75,000. See Target Mkt. Publishing, Inc. v. ADVO, Inc., 136 F.3d 1139, 1142 (7th Cir.
1998); Rexford Rand Corp., 58 F.3d at 1218. “Competent proof means proof to a reasonable
probability that jurisdiction exists.” Jd. at 1218 (internal quotations and citation omitted).

In this case, we conclude that the plaintiffs have submitted competent proof in their
response to the motion to dismiss to establish that the amount in controversy exceeds $75,000.
The central dispute in this motion to dismiss is the value of the compensation Roberge was
potentially required to forego as a result of the restrictive covenant contained in the Employment
Contract. Qualitek argues that Roberge is currently earning $70,000 plus commission in his
present job in Canada and that he will actually lose money over the next two years if he accepts
employment with Amtech. To Qualitek, this means there actually is no amount in controversy in
this case. The plaintiffs, on the other hand, contend that enforcement of the two-year restrictive
covenant will cause Roberge to lose $150,000 of income from Amtech as well as cause Amtech
to lose the value of Roberge’s services. We agree with the plaintiffs.

The plaintiffs have submitted compelling proof in the form of declarations and deposition
testimony that the minimum amount in controversy in this case is $88,000 and the maximum

amount is $150,000. The $88,000 figure comes from a recognition that the $70,000 amount

14


Roberge sold consumable and capital equipment for the electronics industry in Quebec.
(Roberge Dep. at 21-24.).

Plaintiff Amtech, Inc. (“Amtech”) is a Connecticut corporation with its principal place of
business in Branford, Connecticut. Amtech is engaged in the business of manufacturing and
selling solder products for use in the electronics industry, and it conducts business both
nationally and internationally. It is apparent from the record that Amtech is a competitor with
Qualitek in the solder products business.

Defendant Qualitek International, Inc. (“Qualitek”) is an Illinois corporation with its
principal place of business in Addison, Illinois. Qualitek is an international supplier of high
quality solder paste, soldering chemicals, and advanced solder products with approximately 300
employees worldwide.

In October of 1999, Ted Marek, National Sales Manager for Qualitek, approached
Roberge regarding the possibility of him coming to work for Qualitek on a full-time basis. After
a few weeks of negotiation, Roberge accepted Qualitek’s offer of employment as Global
Technical Support Manager, and he began work in that capacity in November of 1999. His
responsibilities as Global Technical Support Manager were to include supporting Qualitek’s
products and salespeople by making recommendations to Qualitek’s customers regarding
problems on the production line. Specifically, Roberge was to advise certain Qualitek customers
on how to better the performance of Qualitek’s product. (Roberge Dep. at 47-49.)

Included with the materials Roberge received around the time he began his employment
with Qualitek was a contract entitled “Employment Contract Protecting Trade Secrets and

Assignment of Patent Rights” (hereinafter the “Employment Contract”). According to the


ROCKETED

IN THE UNITED STATES DISTRICT COURT JAN 2 8 2002
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GILBERT ROBERGE and AMTECH, INC.,

Plaintiffs,
No. 01 C 5509
v.
Judge Wayne R. Andersen
QUALITEK INTERNATIONAL., INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

This case is before the Court on plaintiffs Gilbert Roberge and Amtech, Inc.’s motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56 and defendant Qualitek
International’s motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1). For the following reasons, the plaintiffs’ motion for summary
judgment is granted and the defendant’s motion to dismiss is denied.

BACKGROUND

Plaintiff Gilbert Roberge (“Roberge”), a Canadian citizen, has been employed in the
electronics industry since 1980. According to the record in this case, Roberge was employed at
CAE Electronics from 1980 to 1999 where he had supervisory and manufacturing
responsibilities. Specifically, the record indicates that, while at CAE Electronics, Roberge
worked on special projects such as building the circuit board for the cameras that were placed on
the Canadian Arm of a project for NASA. (Roberge Dep. at 17.) In the fall of 1998, Roberge
began working for a distributor of defendant Qualitek’s products, Airtron Electronics. He was

employed at CAE Electronics and Airtron Electronics simultaneously for 6 months. At Airtron,


Roberge’s signature) and that he did not sign it in January, 2000. We conclude that this
perceived genuine issue of material fact is really just a red herring, and a particularly odoriferous
one at that.

Qualitek must do more than simply show that there is some trivial doubt as to the
material facts in this case. Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586, 106 S.Ct. 1348 (1986). It must present “specific facts showing that there is a genuine issue
for trial,” Fed.R.Civ.P. 56(e), and only if a reasonable jury could render a verdict for them can
they defeat summary judgment. Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000). Material
facts are those pertinent to the outcome of the issues identified in the motion for summary
judgment. See Malec v, Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000). In this case, the
execution date of the Employment Contract is irrelevant to the primary issue presented by the
plaintiffs in their summary judgment motion - whether the restrictive covenant is so broad as to
be void and unenforceable. This is so because neither party disputes the fact that the
Employment Contract was fully executed, regardless of the date on which Roberge actually
signed it, at least a year before Roberge was discharged by Qualitek.

Finally, Qualitek requests that, if we intend to find the restrictive covenant unenforceable
as written, then we should utilize our equitable power to modify the Employment Contract so as
to prevent Roberge from having contact with any Qualitek customer. While a trial court may
employ equity principles and modify the restraints embodied in an employment contract and
enforce the restraints as modified, the fairness of the restraints imposed in the written agreement
is a relevant consideration to the application of such equity principles. See Unterberger, 526

N.E.2d at 625; House of Vinson, Inc. v. Hiyane, 37 Ill.2d 32, 225 N.E.2d 21, 25 (1967). In this

12


Qualitek cites as Roberge’s current salary in Canada is actually based on the Canadian dollar and
not the U.S. dollar. Under the current exchange rate, Roberge is making approximately $44,000
(U.S. dollars) per year, plus an employer funded pension contribution. As a result, over the
course of the two year restrictive period in the Employment Contract, Roberge stands to lose at
least $88,000 in income. Therefore, we conclude that the amount in controversy in this case
exceeds the statutory amount of $75,000. The defendant’s motion to dismiss is denied.
CONCLUSION

For the foregoing reasons, we grant the plaintiffs’ motion for summary judgment pursuant
to Federal Rule of Civil Procedure 56. The restrictive covenant not to compete included in
Section IX of the Employment Contract is unenforceable as a matter of law and therefore void.
If Roberge and Amtech still wish to proceed with their employment relationship, they are free to
do so. The defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) is denied. This is a final and appealable order. This
case is terminated. The ruling date set for February 28, 2002 is hereby stricken.

It is so ordered.

bd, CL

7] Wayne R. Andersen
United States District Judge

pac Mauaey 25, ida

15