The right of former Prudential agents such as Van Matre to engage in the type of conduct at issue in this case has been the subject of considerable litigation in recent years. (See Prudential Insurance Co. v. Schwend (S.D. Ill. 1985), No. 85-5302, aff'd mem. (7th Cir. 1986), 796 F.2d 477; Prudential Insurance Co. v. Sipula (7th Cir. 1985), 776 F.2d 157; Prudential Insurance Co. v. Diemer (N.D. Ind. 1986), 637 F. Supp. 313; Prudential Insurance Co. v. Crouch (S.D. Ind. 1985), 606 F. Supp. 464, aff'd mem. (7th Cir. 1986), 796 F.2d 477; Prudential Insurance Co. v. McCurry (1986), 143 Ill. App.3d 222, 492 N.E.2d 1026; Prudential Insurance Co. v. Baker (Ind. App. 1986), 499 N.E.2d 1152.) Although virtually all of the reported decisions on the matter have ruled adversely to Prudential, some applied the substantive law of Indiana, not Illinois; some were decided by Federal, not State courts; and the cases came before the courts in a variety of procedural postures and factual contexts. While instructive in considering the arguments now before us, none is therefore completely dispositive of all the issues raised by Prudential on this appeal.

We would note, however, that in determining the right of an employee to compete with his former employer, we have often commingled the terms "employee" and "agent," which is probably why the trial court did. See, e.g., Prudential Insurance Co. of America v. Sempetrean, 171 Ill. App. 3d 810, 816 (1988) (referring to defendant interchangeably as "former agent" and "former employee"); Prudential Insurance Co. of America v. McCurry, 143 Ill. App. 3d 222, 223, 226 (1986) (same); Wilborn & Sons, Inc. v. Heniff, 95 Ill. App. 2d 155, 158, 163 (1968) (same). We will thus consider these two findings as one.

Therefore, these bare allegations must be disregarded by the trial court in ruling on a motion to dismiss. ( Prudential Insurance Co. of America v. McCurry (1986), 143 Ill. App.3d 222, 225, 492 N.E.2d 1026, 1028.) To withstand a motion to dismiss, not only must a complaint be factually sufficient, it must also be legally sufficient and set forth a legally recognized claim as its avenue of recovery.

Both California and Illinois recognize such implied covenant. See Prudential Ins. Co. v. McCurry, 492 N.E. 2d 1026, 1028 (Ill. App. Ct. 1986) ("It is well established in Illinois, as in the majority of American jurisdictions, that a covenant of good faith and fair dealing is implied in every contract as a matter of law, absent an express disavowal."). Additionally, to the extent Van Gemert holds the implied covenant of good faith and fair dealing is "reciprocal," see Van Gemert, 262 F. Supp. 2d at 1051, such holding is not inconsistent with the reasoning of Heller.

Again, Immtech apparently chose to remain silent rather than responding that the assignment was invalid. Whether Immtech actually remained silent and, if so, whether that silence constituted an acceptance of the assignment, see First National Bank v. Atlantic Tele-Network Co., 946 F.2d 516, 519 (7th Cir. 1991), or whether, as plaintiffs argue, Immtech's silence is a breach of its covenant of good faith and fair dealing, see Prudential Insurance Company of America v. McCurray, 143 Ill.App.3d 222 (3rd Dist. 1986), are issues not properly adjudicated on summary judgment. Accordingly, defendants' motion for summary judgment on Count V is denied.

While Cingular retained the right to compete with Kempner through company-owned stores, under the duty of good faith and fair dealing Cingular had the obligation to exercise that right in a fair manner. See Prudential Ins. Co. v. McCurry, 492 N.E.2d 1026, 1028 (Ill.App. 3d Dist. 1986). Whether the evidence, as fully developed for trial, will show that this conduct was a part of a purposeful plan remains to be seen.

Roiser v. Cascade Mountain, Inc., 367 Ill.App.3d 559, 568, 305 Ill.Dec. 352, 855 N.E.2d 243, 252 (2006) (appellant's failure to provide reasoned argument results in waiver of appellate consideration); Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued [in the appellant's brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”). ¶ 21 The duties of good faith and fair dealing in performing the terms of a contract are duties that are implied in every contractual relationship. Bank One, Springfield v. Roscetti, 309 Ill.App.3d 1048, 1059–60, 243 Ill.Dec. 452, 723 N.E.2d 755, 763 (1999) ; Prudential Insurance Co. of America v. McCurry, 143 Ill.App.3d 222, 225, 97 Ill.Dec. 367, 492 N.E.2d 1026, 1028 (1986) (a covenant of good faith and fair dealing in performance is implied in every contract as a matter of law, absent an express disavowal). The duties of good faith and fair dealing are an implied agreement to refrain from doing anything which will destroy or injure the other party's right to receive the fruits of the contract.

Roiser v. Cascade Mountain, Inc., 367 Ill.App.3d 559, 568, 305 Ill.Dec. 352, 855 N.E.2d 243, 252 (2006) (appellant's failure to provide reasoned argument results in waiver of appellate consideration); Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued [in the appellant's brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”). ¶ 21 The duties of good faith and fair dealing in performing the terms of a contract are duties that are implied in every contractual relationship. Bank One, Springfield v. Roscetti, 309 Ill.App.3d 1048, 1059–60, 243 Ill.Dec. 452, 723 N.E.2d 755, 763 (1999) ; Prudential Insurance Co. of America v. McCurry, 143 Ill.App.3d 222, 225, 97 Ill.Dec. 367, 492 N.E.2d 1026, 1028 (1986) (a covenant of good faith and fair dealing in performance is implied in every contract as a matter of law, absent an express disavowal). The duties of good faith and fair dealing are an implied agreement to refrain from doing anything which will destroy or injure the other party's right to receive the fruits of the contract.

Rosier v. Cascade Mountain, Inc., 367 Ill. App. 3d 559, 568, 855 N.E.2d 243, 252 (2006) (appellant's failure to provide reasoned argument results in waiver of appellate consideration); Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) ("Points not argued [in the appellant's brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.").¶ 22 The duties of good faith and fair dealing in performing the terms of a contract are duties that are implied in every contractual relationship. Bank One, Springfield v. Roscetti, 309 Ill. App. 3d 1048, 1059-60, 723 N.E.2d 755, 763 (1999); Prudential Insurance Company of America v. McCurry, 143 Ill. App. 3d 222, 225, 492 N.E.2d 1026, 1028 (1986) (a covenant of good faith and fair dealing in performance is implied in every contract as a matter of law, absent an express disavowel). The duties of good faith and fair dealing are an implied agreement to refrain from doing anything which will destroy or injure the other party's right to receive the fruits of the contract.

In addition, the principles of good faith and fair dealing generally do not apply after the termination of the relationship. Prudential Insurance Co. of America v. McCurry, 143 Ill. App.3d 222, 226, 492 N.E.2d 1026, 1028 (1986). The record reveals that Randle left St. Mary's and terminated his employment at HPO one month prior to the sponge being discovered.