However, this court has repeatedly held that there are two situations in which such an interest may be found to exist for the purposes of enforcing a covenant not to compete: (1) where the former employee acquired confidential information through his employment and subsequently attempted to use it for his own benefit, and (2) where the employer has a near-permanent relationship with its customers and but for his associations with the employer, the employee would not have had contact with the customers. Office Mates 5, North Shore, Inc. v. Hazen (1992), 234 Ill. App.3d 557, 569, 599 N.E.2d 1072, 1080; Nationwide Advertising Service, Inc. v. Kolar (1975), 28 Ill. App.3d 671, 673, 329 N.E.2d 300, 302; see also LSBZ, Inc. v. Brokis (1992), 237 Ill. App.3d 415, 603 N.E.2d 1240; Tyler Enterprises of Elmwood, Inc. v. Shafer (1991), 214 Ill. App.3d 145, 573 N.E.2d 863; Agrimerica, Inc. v. Mathes (1990), 199 Ill. App.3d 435, 557 N.E.2d 357; Packaging House, Inc. v. Hoffman (1983), 114 Ill. App.3d 284, 448 N.E.2d 947. CRC does not allege, and the record does not suggest, that Kovach misappropriated any confidential information acquired while in CRC's employ. Indeed, CRC concedes that the names, addresses and telephone numbers of its customers are readily obtainable by anyone wishing to contact them. CRC does, however, contend that the trial court abused its discretion in finding that CRC failed to raise a prima facie case demonstrating that it had a protectable interest in its clients under the second situation outlined above.
An employer has no protectible interest in an employee's customer unless the employer can show the employee would not "have had contact with the customers absent [his] association with the employer." LSBZ, Inc. v. Brokis, 237 Ill. App.3d 415, 430, 603 N.E.2d 1240 (1992). In LSBZ the plaintiff, a hairstyling salon, sought an injunction to prevent a former employee from styling the hair of the plaintiff's customers.
"Because a preliminary injunction is designed to preserve the status quo pending a decision on the merits, the plaintiff need not carry the same burden of proof that is required to support the ultimate issue." LSBZ, Inc. v. Brokis, 237 Ill. App. 3d 415, 425 (1992); see also Shapiro v. Regent Printing Co., 192 Ill. App. 3d 1005, 1009-10 (1989) ("purpose of a preliminary injunction is to raise a fair question as to the existence of a right needing protection, not to decide controverted facts or the ultimate merits"). To satisfy the first and fourth requirements, "a plaintiff need only raise a fair question as to the existence of the right which [it] claims and lead the court to believe that [it] will probably be entitled to the relief requested if the proof sustains [its] allegations."
The purpose of a preliminary injunction is not to determine the merits of a case but to preserve the status quo pending a decision on the merits. ( Buzz Barton Associates, Inc. v. Giannone (1985), 108 Ill.2d 373, 386; LSBZ, Inc. v. Brokis (1992), 237 Ill. App.3d 415, 425.) The status quo is the last peaceable uncontested status that preceded the litigation.
and time and place restrictions. Id. Defendant, relying on LSBZ, Inc. v. Brokis, 237 Ill. App. 3d 415 (1992), concentrates exclusively on the customer near-permanence factor. In determining whether an employer has a near-permanent relationship with its customers, the court may consider: (1) the length of time required to develop clientele; (2) the amount of money invested to acquire clients; (2) the degree of difficulty in acquiring clients; (4) the extent of personal customer contact by the employee; (5) the extent of the employer's knowledge of its clients; (6) the duration of the customers' relationship with the employer; and (7) the continuity of employer-customer relationships.
) ( Arpac Corp. v. Murray (1992), 226 Ill. App.3d 65, 75; see also Label Printers v. Pflug (1991), 206 Ill. App.3d 483, 491.) The reasonableness of a noncompetition agreement is measured by its hardship to the employee, its effect upon the general public, and the reasonableness of the time, territory, and activity restrictions. ( Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App.3d 736, 750.) Courts uphold only those noncompetition agreements which protect the employer's legitimate proprietary interests and not those whose effect is to prevent competition per se. L S B Z, Inc. v. Brokis (1992), 237 Ill. App.3d 415, 425. • 2 An employer ordinarily has no proprietary interest in its customers.
(1) the length of time required to develop the clientele; (2) the amount of money invested to acquire clients; (3) the degree of difficulty in acquiring clients; (4) the extent of personal customer contact by the employee; (5) the extent of the employer's knowledge of its clients; (6) the duration of the customers' association with the employer; and (7) the continuity of employer-customer relationships.Abbott-Interfast Corp. v. Harkabus, 250 Ill. App. 3d 13, 17, 619 N.E.2d 1337, 1341 (2d Dist. 1993), quoting LSBZ, Inc. v. Brokis, 237 Ill. App. 3d 415, 426, 603 N.E.2d 1240, 1248 (2d Dist. 1992). In order to establish that it has near-permanent relationships, the employer usually must make a positive showing on most or all of these factors.
A noncompetition clause is enforceable in Illinois courts where, as here, the employee terminates the employment relationship if the time and territorial restrictions are reasonable and a protectable business interest exists on the part of the employer. See LSBZ, Inc. v. Brokis, 603 N.E.2d 1240 (Ill.App. 1992) (citations omitted). Defendant does not dispute that there is a protectable business interest at issue in the present case.
(1) the length of time required to develop the clientele; (2) the amount of money invested to acquire clients; (3) the degree of difficulty in acquiring clients; (4) the extent of personal customer contact by the employee; (5) the extent of the employer's knowledge of its clients; (6) the duration of the customer's association with the employer; and (7) the continuity of the employer-customer relationships.Kovack, 211 Ill.Dec. at 654, 655 N.E.2d at 1037; LSBZ, Inc. V. Brokis, 237 Ill. App.3d 415, 177 Ill.Dec. 866, 874, 603 N.E.2d 1240, 1248 (1992). In this case, we cannot ascertain whether Loewen has a near-permanent relationship with its clients, since almost every one of the factors mentioned above is disputed by the parties.
In order to show a likelihood of success on the merits, the party seeking injunctive relief need only " ‘raise a fair question as to the existence of the right which [it] claims and lead the court to believe that [it] will probably be entitled to the relief requested if the proof sustains [its] allegations.’ " Stenstrom Petroleum Services Group, Inc. v. Mesch , 375 Ill. App. 3d 1077, 1089, 314 Ill.Dec. 594, 874 N.E.2d 959 (2007) (quoting LSBZ, Inc. v. Brokis , 237 Ill. App. 3d 415, 425, 177 Ill.Dec. 866, 603 N.E.2d 1240 (1992) ). Because both the Act and subsequent statutes confirm the Governor's authority to issue successive proclamations arising from a single, ongoing disaster, we find that FoxFire failed to establish a likelihood of success on the merits.