Consideration in Illinois Noncompete Agreements: How Much Is Enough? LKQ Corporation v. Thrasher

In order to hold an employee or former employee liable under an agreement not to compete, an employer must offer the employee some form of consideration in exchange for the employee’s promise not to compete with the employer. The Northern District of Illinois tackles the difficult question of how much consideration is enough in LKQ Corporation v. Thrasher.

Plaintiff LKQ Corporation is a national automobile parts supplier. In January 2010, Plaintiff hired Defendant Corey Thrasher as a Sales Representative, handling accounts in the Northwest United States. Defendant signed a noncompete agreement shortly after he was hired, allegedly stating that he would not compete with Plaintiff nor solicit Plaintiff’s customers during his employment and for one year following the end thereof. The noncompete agreement also included a forum selection clause designating that any actions related to the contract be raised in Illinois and considered under Illinois law.

One year later, Defendant resigned from his position, effective February 2011. On the day he resigned, Defendant allegedly contacted a number of Plaintiff’s customers via email, telling them that he had taken a similar position with B&R Auto Wrecking, Inc. and that he was looking forward to continuing to work with these customers. Plaintiffs allege that Defendant has continued to solicit LKQ customers to purchase B&R merchandise and that several LKQ clients have decreased their business with LKQ as a result.

Plaintiff filed suit alleging that Defendant breached the non-compete agreement. The court denied Defendant’s motion to dismiss the action, in which he argued that the agreement lacked sufficient consideration to be enforceable. The court concluded that Plaintiff received continued employment for a “substantial period” following the execution of the agreement, which constituted adequate consideration, and therefore the agreement was enforceable.
In order for a contract to be enforceable, the promises therein must be given in exchange for consideration. Typically, consideration is anything of value received in exchange for a promise. In the employment context, however, a party seeking to enforce an noncompete agreement must prove that sufficient consideration was given in exchange for the promise not to compete because the simple benefit of continued employment is illusory: employment is at will and a person who signs a noncompete agreement can still be fired at any time. Thus, only continued employment for a “substantial period” or some other form of consideration is sufficient to support a noncompete agreement.

In this case, the court noted that Defendant allegedly was not fired, but instead voluntarily left his position with Plaintiff. While further noting that Illinois law is unclear as to what amount of time is “substantial” for purposes of consideration, the court ruled that “both the length of his term of employment, along with his apparently voluntary resignation, lead the court to conclude that he was provided with a “substantial period” of employment.” As a result, Defendant’s motion to dismiss the action was denied.

Noncompete agreements often raise complex issues for both parties. At Lubin Austermuehle, our Chicago business attorneys represent individuals and businesses in noncompete agreement litigation. We are pleased to assist clients throughout the Chicagoland area as well as clients in Indiana and Wisconsin. To contact a lawyer at our firm, call 630-333-0333 or (630) 333-0333. You may also contact us by e-mail.