{ "id": 4259919, "name": "THE AGENCY, INC., d/b/a The Agency Staffing, Plaintiff-Appellant, v. JANET GROVE et al., Defendants-Appellees", "name_abbreviation": "Agency, Inc. v. Grove", "decision_date": "2005-11-16", "docket_number": "No. 2\u201405\u20140806", "first_page": "206", "last_page": "220", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 206" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "268 Va. 122", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 12631329 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "125" }, { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/se2d/596/0525-01" ] }, { "cite": "72 Ill. App. 3d 285", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582513 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "291", "parenthetical": "\"In a highly competitive business, personal customer contact and the insider knowledge of the customer's requirements are important to the continued success of the business\"" }, { "page": "293" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0285-01" ] }, { "cite": "253 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5422736 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "640", "parenthetical": "worksheets for determining insurance premiums were confidential because they would give a competitor the \" 'inside scoop' as to what a customer's current insurance rate is and how it was calculated\"" }, { "page": "640" }, { "page": "640" }, { "page": "640" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0631-01" ] }, { "cite": "99 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100868 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "643" }, { "page": "643-44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0637-01" ] }, { "cite": "144 Ill. App. 3d 875", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499883 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "879" }, { "page": "881-82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0875-01" ] }, { "cite": "245 Ill. App. 3d 281", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384791 ], "year": 1993, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0281-01" ] }, { "cite": "242 Wis. 2d 733", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 9476396 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "737" }, { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/242/0733-01" ] }, { "cite": "343 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719712 ], "year": 2003, "pin_cites": [ { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/1026-01" ] }, { "cite": "358 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5730684 ], "year": 2005, "pin_cites": [ { "page": "948-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0945-01" ] }, { "cite": "352 Ill. App. 3d 1129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5456935 ], "year": 2004, "pin_cites": [ { "page": "1139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/1129-01" ] }, { "cite": "244 Ill. App. 3d 1069", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5100315 ], "year": 1993, "pin_cites": [ { "page": "1080" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/1069-01" ] }, { "cite": "112 Ill. App. 3d 229", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5432362 ], "year": 1983, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0229-01" ] }, { "cite": "134 Ill. App. 3d 884", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636073 ], "year": 1985, "pin_cites": [ { "page": "894-95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0884-01" ] }, { "cite": "226 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238777 ], "year": 1992, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0065-01" ] }, { "cite": "237 Ill. App. 3d 415", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5162004 ], "year": 1992, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0415-01" ] }, { "cite": "255 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2990370 ], "year": 1994, "pin_cites": [ { "page": "991" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/0982-01" ] }, { "cite": "355 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599514 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "934" }, { "page": "934" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0926-01" ] }, { "cite": "108 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130058 ], "year": 1985, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0373-01" ] }, { "cite": "341 Ill. App. 3d 345", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575491 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "351" }, { "page": "351" }, { "page": "351" }, { "page": "351" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0345-01" ] }, { "cite": "297 Ill. App. 3d 36", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910225 ], "year": 1998, "pin_cites": [ { "page": "43", "parenthetical": "\"An issue is moot when its resolution could not have any practical effect on the existing controversy\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0036-01" ] } ], "analysis": { "cardinality": 1410, "char_count": 34520, "ocr_confidence": 0.771, "pagerank": { "raw": 9.573584503837996e-08, "percentile": 0.5257424274542647 }, "sha256": "9bddd3a2eb31caf0fec8e3b6f1b38fcbfb0a9dcea0cd0efe2024a1cd8e9bed13", "simhash": "1:3b1999f677c371c1", "word_count": 5410 }, "last_updated": "2023-07-14T16:28:25.526171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE AGENCY, INC., d/b/a The Agency Staffing, Plaintiff-Appellant, v. JANET GROVE et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nPlaintiff, The Agency, Inc., filed a complaint against Janet Grove, its former employee, and Accurate AJM, Inc., her current employer, alleging violations of the Illinois Trade Secrets Act (Trade Secrets Act) (765 ILCS 1065/1 et seq. (West 2002)) and of a \u201cCovenant Not to Compete\u201d (Covenant) that Grove signed while employed with plaintiff. Plaintiff alleged that Grove appropriated confidential information while in plaintiffs employ. Plaintiff sought preliminary and permanent injunctions to enforce a confidentiality provision in the Covenant. Plaintiff also sought injunctive relief to enforce the Covenant\u2019s provision prohibiting Grove from competing with plaintiff within 35 miles of its offices for 14 months after the termination of her employment. Finally, plaintiff sought compensatory damages. The trial court determined that the Covenant was unenforceable and denied the request for preliminary injunctive relief. Plaintiff appeals, asking us to reverse the trial court and enter preliminary injunctions enforcing the noncompetition and confidentiality provisions of the Covenant. We find the issue of the enforceability of the 14-month prohibition moot and reverse the judgment of the trial court on the confidentiality provision.\nWe first explain our finding of mootness. Grove\u2019s employment with plaintiff began on June 20, 2000. The Covenant she signed provided in relevant part:\n\u201c1. I acknowledge that [plaintiff] has developed certain business information and methods of operation including but not limited to client lists, client\u2019s temporary and permanent employment needs, client\u2019s hiring qualifications and other preferences, fees charged to clients for services, business methods utilized in the acquisition and servicing of clients, business methods utilized in developing and maintaining sources and supply of skilled and unskilled labor, costs and markups, and other information legally described as \u2018trade secrets.\u2019\n2. I acknowledge that I will have access to [plaintiff\u2019s] records that include the foregoing business information as well as develop additional such information as part of my job duties. I understand that [plaintiff] has developed the foregoing business information and methods at its expense and utilizes the information to maintain a competitive position within the ind stry, and : aid information has also been determined to be \u2018trade secrets.\u2019\n3. I acknowledge and understand that the foregoing \u2018trade secrets\u2019 and methods are treated by [plaintiff] as confidential and must be protected from disclosure so as to not damage [plaintiffs] competitive position in the industry.\n4. I, therefore, agree that I will not, at any time, either while employed by [plaintiff] or afterwards, make any independent use of or disclose to any person, firm or corporation any \u2018trade secret\u2019 or methods described above developed by [plaintiff],\n5. I agree that if my employment with [plaintiff] is terminated for whatever reason I will not, for a period of fourteen (14) months following the termination of employment, directly or indirectly, work for or engage in any business competitive with [plaintiff], within a thirty-five (35) mile radius of any office of [plaintiff], I also agree that for a period of fourteen (14) months following the termination of employment, I will not call on or solicit any of the clients of [plaintiff] to whom I have rendered services, had contact with, or knowledge of by any reason of my employment with [plaintiff].\u201d\nGrove\u2019s final day of employment with plaintiff was August 13, 2004. Ten months later, on June 14, 2005, plaintiff filed its complaint. A hearing on plaintiff\u2019s petition for injunctions began on June 23 and concluded on June 29. The trial court issued its ruling on August 3, and plaintiff filed its notice of appeal on August 16. Briefing was completed on September 26. The 14-month prohibition expired on October 13. (Notably, 10 months alone elapsed between Grove\u2019s final day of employment and the initiation of the lawsuit.) Thus, the issue of the enforceability of that provision is moot. See La Salle National Bank, N.A. v. City of Lake Forest, 297 Ill. App. 3d 36, 43 (1998) (\u201cAn issue is moot when its resolution could not have any practical effect on the existing controversy\u201d).\nWhat remains is the issue of whether Grove should be preliminarily enjoined from disclosing or using information that plaintiff claims is confidential. The hearing disclosed the following evidence relative to this issue. Plaintiff is in the business of placing temporary workers in various businesses and has branches in McHenry, West Dundee, Hampshire, and Rochelle. Plaintiff earns its profit by markup, which is the difference between the rates it charges a client for a worker and the rate it pays the worker. Plaintiff employs sales representatives to generate new clients. Grove served as a sales representative in plaintiff\u2019;\u2022 McHenry office. Upon leaving plaintiffs employ, Grove told plaintiff S' at she was \u201cretiring\u201d from sales and wanted to spend time with her husband. Instead, Grove began working for Accurate, a competitor of plaintiffs in the temporary staffing business. In her testimony at the hearing, Grove testified that her remark about retiring was just a joke.\nYvonne Graff, plaintiffs operations manager, testified that plaintiff maintains a computer network that is accessible only by password. Plaintiff limits Internet and e-mail availability to branch managers in order to limit the potential for disclosure of confidential information contained on the network. Graff explained that one of the programs on the network is the \u201cTask Generator,\u201d which Graff explained contains profiles of plaintiff\u2019s clients. Graff testified that sales representatives are able to view the client profiles in the Task Generator but are unable to generate printouts, this privilege being reserved to branch managers. Graff testified that the profiles in the Task Generator include a vast array of information on each of plaintiffs clients such as the client\u2019s business cycles (which affect its need for temporary workers), contract expiration dates, the client\u2019s credit information, the client\u2019s personnel preferences, worker placement history, the markups used for the client and the explanations therefor (e.g., intensity of work, risk involved), and the client\u2019s contact persons along with their particular likes, dislikes, and even idiosyncracies. Plaintiff introduced into evidence a printout of a section of the Task Generator containing profiles of seven different clients. Each profile opens with a general description of the client followed by dated entries updating the profile. The following two profiles (redacted by the parties in the trial court for confidentiality) are representative of the seven:\n\u201c[1] Customer Profile [ ]\nPrimarily seasonal temporary outdoor general labor but good employees will be treated as Try-Hire. Temps must have good English language skills \u2014 NO TRANSLATORS!\nL ] is the parks and facilities manager \u2014 most of our job orders will come from him.\n[ ] is down to business, no messing around, wants employees that are ON TIME ALL THE TIME! Hates tardiness and \u2018slackers.\u2019\n[ ] is the township supervisor \u2014 will handle any admin/office positions.\n[ ] loves to talk about the charitable [ ] programs \u2014 Be careful, she\u2019ll hit you up for a donation almost every time you go to see her.\n[ ] loves getting gifts! Keeps several pictures of her kids and family on her desk so be sure to comment on them when you visit her.\n[ ] likes regular phone calls. Be sure to use his cell phone during his business hours as he\u2019s only in the shop very early and very late in the day.\n8/19/03 9:54 [ ] REFERRED US TO THE [ ]\n[ ] CALLED AND WANTS TO USE OUR SERVICE. I SENT HIM A PROPOSAL YESTERDAY AND [ ] HAS IT AND WILL SHOW IT TO [ ] FOR APPROVAL. I SENT [ ] A THANK YOU CARD AND TOLD HIM WE WOULD HAVE TO HAVE LUNCH ONE DAY SOON. JLG.\n[2]\nCustomer Profile [ ]\n[ ] asked to call on this company. [ ] said she used to do [ ] nails. Seasonal temporary ONLY. No English language skills req.\nThey make really cool soup mixes.\nThey buy foil stickers from [ ] (another one of our clients and where [ ] used to work.\n[ 1 talked with [ ] they used to laugh and giggle on the phone all the time \u2014 [ J sat next to [ ]) Be sure and comment on how nice their packaging is and on the fancy foil stickers.\nMarketing campaign \u201901; we bought cases of their soup mixes to use in marketing campaign this year \u2014 It was a great way to strengthen our relationship with this client!\nExtremely casual environment, best not to over dress if you\u2019re going for a visit.\nALWAYS bring treats of some sort when you visit (not soup). 9/14/00 12:09 sent two girls over this morning. Haven\u2019t heard from [ J but no news is good news, jig\n3/20/01 09:30 spoke with [ ] and she will pay her bill asap and she indicated that they would need people in July, jig 8/18/03 09:36 had lunch with [ 1 on Friday and she says they just got a huge account [. J. They will be leasing new space for just their [ ]. She said we could probably help them with staffing this new facility. Plus their business is picking up and they will be calling us soon for assemblers, jig.\u201d\nGraff testified that plaintiff maintains the confidentiality of the client profiles because they \u201chelp us to generate relationships, maintain relationships, build relationships with clients and prospects.\u201d Graff noted that the client profiles \u201ccould easily be very valuable to another business.\u201d Graff acknowledged that contact information such as the name of a company\u2019s personnel manager \u201csometimes\u201d could be acquired by a simple phone call, but personal information about that individual or others in the company could not. Graff further acknowledged that plaintiff sends out proposals on prospective jobs containing such information as the type of position to be filled and the rate of pay, and although these proposals are termed \u201cconfidential,\u201d the client does not sign any confidentiality agreement. Graff testified that 80% of plaintiff\u2019s clients have been with plaintiff more than five years and, of these, at least seven have been with plaintiff more than 15 years.\nGraff also testified that knowing a client\u2019s business cycles allows plaintiff to predict when the client will need employees.\nPeter Gault, plaintiffs hiring and training director, testified that, in addition to the Task Generator, plaintiff maintains hard copies of client files that contain information similar to what the Task Generator contains. Gault testified that the files are kept in a file cabinet in Gault\u2019s office. Although the cabinet is unlocked during the day, it may not be accessed without Gault\u2019s permission. Gault further testified that most of the information in the Task Generator\u2019s client profiles could not be learned from publicly available business directories.\nGault explained that plaintiff endeavors to gain personal knowledge about clients in order to establish lasting relationships. Gault noted that plaintiff records information about \u201canything with regard to the environment of the company. Anything with regard to personal preferences, personal information about a client, likes, what they might have on their desk that you might talk about.\u201d For instance, plaintiff has recorded the fact that one of its client\u2019s contact people enjoys chocolate-covered strawberries. Gault testified that plaintiff gives gifts to the contact people. Gault stressed that \u201clittle things like that *** help you really understand the needs and wants of a client.\u201d\nGault testified in detail about the process of obtaining business from a prospective client. Gault explained that the goal of a sales representative is to \u201cmake contact with the key contact on the third or fourth visit.\u201d Gault explained that the preliminary visits are \u201cdesigned *** so that the gate keepers, as they were, receptionists, secretaries are very comfortable seeing you come in time after time. And also, you know, look forward to having you come in if you\u2019re bringing treats, items.\u201d The success of these visits is no guarantee of business, Gault stressed, and often earns the sales representative only an appointment with a contact person. At that appointment, Gault explained, the sales representative would try to \u201cunderstand what kind of business they have; understand what type of employees they use, and when they use them, how they use them.\u201d Gault explained that the process of getting an appointment alone takes at least a month. Graff testified that it takes between 6 and 24 months to obtain a prospective client\u2019s business, the average being about 8 months.\nPeggy Thodos, plaintiff\u2019s president, explained that plaintiff is unique among temporary staffing agencies in its efforts to build relationships with clients and know them personally. Thodos testified that plaintiff organizes social gatherings and parties for its current clients as well for prospective clients. Thodos related an occasion where she and other employees cooked hamburgers for all three shifts of a client\u2019s workforce at 150 employees per shift. Thodos testified that, the closer the relationship plaintiff has to its client\u2019s key contact people, the easier it is to work with that client and the greater the chance that the client will strongly recommend plaintiff to a prospective client. Thodos explained that plaintiffs philosophy is \u201cto have our clients do our marketing for us.\u201d Thodos testified: \u201cWe can sell ourselves until we are blue in the face, but our current clients that love and adore us can certainly be a much stronger referral to those perspective [stcj clients.\u201d\nThodos testified that business directories contain only company addresses, phone numbers, numbers of employees, and top personnel. Thodos emphasized that this information alone is not sufficient for a staffing agency to acquire or maintain business.\nGrove and Robert Migliore, president of Accurate, disagreed with plaintiff\u2019s witnesses about what was required to obtain information like that contained in plaintiff\u2019s client profiles. They acknowledged that business directories do not contain such information but claimed that it could be obtained after one appointment with a client or even after one phone call. Migliore also testified that a temporary staffing agency can learn a significant amount of information about a prospective client from temporary workers who had previously worked for that client. Migliore acknowledged that knowing the business cycles of a prospective client would put a staffing agency at an advantage in procuring the client\u2019s business.\nPlaintiff introduced into evidence a document called a \u201cClient Catalog List\u201d (Client List). The Client List was produced by Grove during discovery. The Client List contains brief profiles on 17 of plaintiff\u2019s clients. The Ghent List contains much of the same information as the Task Generator printout. Grove testified that she created the Client List in 2003 at Peter Gault\u2019s directive. (Gault denied this.) Grove testified that Gault told her to record \u201cany thoughts that [she] might have on clients, pertinent information that they needed to know about.\u201d Grove testified that she prepared the Client List largely from memories of her interaction with plaintiff\u2019s clients. She admitted that the information she recorded in the Client List is precisely the type that plaintiff required its sales representatives to include in the client profiles of the Task Generator. She further admitted that the information in the Task Generator is \u201cconfidential\u201d information. Grove testified that, without plaintiffs knowledge, she retained the Client List after leaving plaintiffs employ and still possesses a copy. Grove admitted that she has solicited business from companies that were clients of plaintiff\u2019s while Grove was employed there. Grove denied, however, that she shared any of the information on the Client List with anyone at Accurate. Asked if she told anyone at Accurate \u201cthe particular requirements\u201d of the businesses that were plaintiffs clients when she was employed with plaintiff, she testified that she did not share such information about any particular client of plaintiffs until after that client became an \u201cestablished client\u201d of Accurate.\nThe trial court declined to hold that the client profiles in plaintiffs Task Generator were protectable confidential information. The court reasoned:\n\u201cThe identity of the employers needing temporary help is not a trade secret and is readily available. Although [plaintiff] downplays the importance of the Manufacturer\u2019s Guide as a resource to identify potential clients, the fact that such a resource exists indicates that anyone with the time and willingness to do so could contact any or all of the manufacturers in McHenry County and solicit their business.\u201d\nA party seeking a preliminary injunction must show that: (1) the party has a clear right or interest needing protection; (2) the party has no adequate remedy at law; (3) irreparable harm will result if the preliminary injunction is not issued; and (4) there is a reasonable likelihood of success on the merits. Hanchett Paper Co., v. Melchiorre, 341 Ill. App. 3d 345, 351 (2003). The party need establish only aprima facie case that there is a fair question as to the existence of the right claimed and the need for protection. Buzz Barton & Associates, Inc. v. Giannone, 108 Ill. 2d 373, 382 (1985). The trial court\u2019s disposition of a petition for a preliminary injunction will not be disturbed absent an abuse of discretion. Hanchett Paper Co., 341 Ill. App. 3d at 351.\nThe propriety of injunctive relief based on a covenant not to compete depends on the enforceability of that covenant. Hanchett Paper Co., 341 Ill. App. 3d at 351. Covenants not to compete are a restraint on trade and, as such, are strictly construed by courts to ensure that their intended effect is not to prevent competition per se. Hanchett Paper Co., 341 Ill. App. 3d at 351. Courts will not enforce a covenant not to compete unless the terms of the agreement are reasonable and necessary to protect an employer\u2019s legitimate business interests. Hanchett Paper Co., 341 Ill. App. 3d at 351. A legitimate business interest exists where: (1) because of the nature of the business, the customers\u2019 relationships with the employer are near-permanent and the employee would not have had contact with the customers absent the employee\u2019s employment; or (2) the employee gained confidential information through his employment that he attempted to use for his own benefit. Appelhaum v. Appelbaum, 355 Ill. App. 3d 926, 934 (2005). These questions necessarily involve matters of fact. A.J. Dralle, Inc. v. Air Technologies, Inc., 255 Ill. App. 3d 982, 991 (1994).\nThere is some mystery surrounding the standard of review that the courts of this state apply to a determination of the enforceability of a restrictive covenant. Appellate court cases addressing such covenants often say their enforceability is a question of law that depends on the particular facts of each case. See, e.g., LSBZ, Inc. v. Brokis, 237 Ill. App. 3d 415, 425 (1992); Arpac Corp. v. Murray, 226 Ill. App. 3d 65, 75 (1992); The Instrumentalist Co. v. Band, Inc., 134 Ill. App. 3d 884, 894-95 (1985); MBL (USA) Corp. v. Diekman, 112 Ill. App. 3d 229, 237 (1983). These cases are peculiarly silent as to how these issues of law and fact are to be reviewed. Our research discloses only one case that actually states a standard of review. In Hamer Holding Group, Inc. v. Elmore, 244 Ill. App. 3d 1069, 1080 (1993), the First District Appellate Court declares: \u201cSince the reasonableness of the restraint is a question of law, we review the trial court\u2019s determination de novo.\u201d Here arises the difficulty. If, as the above authorities hold, a trial court\u2019s determination of enforceability entails the resolution of disputed factual matters as well as legal issues, then de novo review cannot be the only standard applied. \u201cIn Illinois, a judge\u2019s or jury\u2019s findings of fact in a civil case are generally accorded manifest-weight review,\u201d but \u201c[a] judge\u2019s rulings of law in a civil or criminal case are reviewed under the nondeferential de novo standard.\u201d Franz v. Calaco Development Corp., 352 Ill. App. 3d 1129, 1139 (2004). In our assessment, the enforceability of a restrictive covenant is best viewed as presenting separate questions of law and fact, in the same way as a ruling on a motion to suppress is currently viewed in Illinois. A ruling on a motion to suppress is reviewed as follows:\n\u201cFirst, we uphold the trial court\u2019s findings of historical fact unless such findings are against the manifest weight of the evidence. [Citation.] The trial court is in a superior position to determine and weigh the credibility of the witnesses, observe the witnesses\u2019 demeanor, and resolve conflicts in their testimony. [Citation.] However, this court remains free to undertake its own assessment of the facts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted. [Citation.] Accordingly, we review de novo the ultimate question of whether the evidence should be suppressed. [Citation.]\u201d People v. Conner, 358 Ill. App. 3d 945, 948-49 (2005).\nWhere there are no disputed facts, the review is entirely de novo. People v. Miles, 343 Ill. App. 3d 1026, 1030 (2003). Courts in other jurisdictions have taken this two-tiered approach to restrictive covenants. See, e.g., Turner v. Caplan, 268 Va. 122, 125, 596 S.E.2d 525, 527 (2004); Mutual Service Casualty Insurance Co. v. Brass, 242 Wis. 2d 733, 737, 625 N.W.2d 648, 651 (App. 2001). We hold that, where the existence of a legitimate business interest turns on an issue of disputed fact, such issue is reviewed under the manifest-weight standard, but the question of whether a covenant is enforceable under the facts is a legal question subject to de novo review. Of course, where the issue on review is whether a preliminary injunction should issue to enforce a restrictive covenant whose validity is in question, the reviewing court may find itself applying three different standards. The manifest-weight and de novo standards will apply to the question of enforceability, and whether a covenant is enforceable or not will become a factor in the ultimate analysis of whether a preliminary injunction should issue, such analysis being reviewable for abuse of discretion.\nPlaintiff\u2019s first argument on appeal is that the trial court committed reversible error by resolving the ultimate merits of the issue of enforceability. \u201cThe purpose of a preliminary injunction is not to determine controverted rights or to decide controverted facts of the merits of the case.\u201d Schweickart v. Powers, 245 Ill. App. 3d 281, 290 (1993). The trial court, in its written order denying the petition for a preliminary injunction, framed the issue as \u201cwhether the non-competition agreement signed by Grove at the time of her hire is enforceable,\u201d and ultimately determined that the covenant \u201cis not enforceable.\u201d Plaintiff points to the decisive and unqualified tone of the language. Nonetheless, we cannot conclude that the trial court actually reached the ultimate merits of the dispute, for the court set the matter for further proceedings. In any event, we reverse the trial court for other reasons explained below and need not resolve this issue.\nWe agree with plaintiff that the trial court erred on the issue of whether plaintiff showed a reasonable likelihood of proving the confidential nature of the client information retained by Grove after she left plaintiff\u2019s employ. \u201c[Wjhile an employee, at the termination of his employment, can take with him general skills and knowledge acquired during the course of his employment, he may not take confidential particularized information disclosed to him during the time the employer-employee relationship existed which are unknown to others in the industry and which give the employer advantage over his competitors.\u201d Burt Dickens & Co. v. Bodi, 144 Ill. App. 3d 875, 879 (1986). \u201cCustomer information cannot be protected if it is generally available to employees, known by persons in the trade, or easily found in telephone directories and industry directories.\u201d Appelbaum, 355 Ill. App. 3d at 934.\nThe trial court\u2019s reasoning was based on an erroneous understanding of the evidence. The trial court was exclusively concerned with the mere identities of the clients, noting that this information was accessible through business directories. The client profiles, however, contained not only client identities but client business cycles, expiration dates, and personnel preferences \u2014 information that indisputably is not available in directories. As the evidence showed, business cycles determine staffing needs, and knowledge of a prospective client\u2019s business cycles will aid a staffing agency in serving that client\u2019s needs. There is a similar value to staffing agencies in knowing the personnel preferences of plaintiffs clients, worker placement history, and expiration dates of contracts between plaintiff and its clients. In Burt Dickens, cited by plaintiff, the court held that knowledge of the expiration dates of plaintiffs insurance contracts would be valuable for competitors, for it would enable them to contact plaintiff\u2019s clients when their contracts were up for renewal. The expiration dates, the court held, were confidential because they generally were unknown to others in the industry and could provide competitors an advantage. Burt Dickens, 144 Ill. App. 3d at 881-82. We must say the same of the contract expiration dates, business cycles, worker placement history, and personnel preferences compiled by plaintiff in this case.\nOur conclusion is further supported by Tower Oil & Technology Co. v. Buckley, 99 Ill. App. 3d 637 (1981). There, the court held that the defendant, a salesman for an industrial lubricant company, acquired confidential information through meetings with his fellow salesmen in which they \u201cexchanged ideas concerning the servicing of their customers\u201d and \u201cdiscussed new products and the proper application thereof.\u201d Tower Oil, 99 Ill. App. 3d at 643. The court explained that \u201c[pjrior knowledge of the needs of a prospect, the type of products which would satisfy these needs, and the proper application of these products would certainly assist a salesman in persuading the prospect to change its supplier.\u201d Tower Oil, 99 Ill. App. 3d at 643-44. Similarly, the client information that Grove acquired would be a substantial asset in an attempt to deprive plaintiff of staffing opportunities. Also, the knowledge of plaintiffs markups and the reasons therefor would be of equal value to a competitor. See Lyle R. Jager Agency, Inc. v. Steward, 253 Ill. App. 3d 631, 640 (1993) (worksheets for determining insurance premiums were confidential because they would give a competitor the \u201c \u2018inside scoop\u2019 as to what a customer\u2019s current insurance rate is and how it was calculated\u201d).\nSignificant also is the data about the personal characteristics of the contact people. Plaintiffs witnesses repeatedly emphasized that plaintiff retained this information to fulfill its overarching aim of establishing personal relationships with its clients. The witnesses explained that the personal relationship with the client fortifies the business relationship and leads to a commendatory referral. Gault testified that the \u201clittle things,\u201d such as gifts and parties, increase goodwill. Thodos testified that plaintiff is unique in its efforts to introduce a personal element into the business relationship. This claim was uncontested; Migliore, who operates one of plaintiff\u2019s competitors, gave no indication that his firm takes a like approach. This personal information, we conclude, provides a competitive advantage to plaintiff and therefore is confidential. See Donald McElroy, Inc. v. Delaney, 72 Ill. App. 3d 285, 291 (1979) (\u201cIn a highly competitive business, personal customer contact and the insider knowledge of the customer\u2019s requirements are important to the continued success of the business\u201d). In McElroy, the plaintiff was in the business of extracting silver from photographic materials. The defendant, the plaintiffs former purchasing manager, not only had access to \u201cinformation about [the plaintiff\u2019s] equipment, recovery capabilities, yield figures, bidding procedures and suppliers\u2019 requirements,\u201d but had \u201cestablished customer contacts through close personal involvement with [the defendant\u2019s] suppliers.\u201d McElroy, 72 Ill. App. 3d at 293. The court held that \u201c[i]n combination, this insider information could potentially give defendant ] an unfair advantage in bidding against [plaintiff] for photographic waste material.\u201d McElroy, 72 Ill. App. 3d at 293. Here, too, the information in the client profiles could give defendents an unfair competitive advantage in placing workers with plaintiffs clients.\nDefendants claim that plaintiff\u2019s client information was readily available and thus not confidential. They point to Grove\u2019s and Migliore\u2019s testimony that the information in the client profiles was obtainable from temporary workers who had worked for the clients as well as from the clients themselves, through phone calls or appointments. Defendants also note that plaintiff kept client information in file cabinets that were unlocked during the day and did not require its clients to agree to keep information in client proposals confidential. Plaintiff\u2019s witnesses, we note, strenuously disputed Grove\u2019s and Migliore\u2019s claims. Gault, for one, testified that plaintiffs sales representatives might try for weeks before obtaining a first appointment.\nArguments similar to defendants\u2019 were rejected in Lyle R. Jager, 253 Ill. App. 3d 631, cited by plaintiff. In that case, the defendant argued that the information he took from the plaintiff, consisting of customer files that included client contact information as well as explanations for how the plaintiff determined insurance premiums, \u201cwas not confidential because the information *** could be obtained from the customers themselves, and *** the names and telephone numbers could be memorized.\u201d Lyle R. Jager, 253 Ill. App. 3d at 640. The defendant also noted that the information was kept in unlocked file cabinets and thus was accessible to anyone in the plaintiffs office. The court nonetheless found the information confidential, stressing that \u201cwhen individual pieces of information are compiled and organized at a single location as in this case, it is much more valuable and useful than each piece of information individually.\u201d Lyle R. Jager, 253 Ill. App. 3d at 640. The court further noted that \u201c[i]nformation in such a compiled form is not easily obtained or accessible to the public, and information such as the worksheets on which the client\u2019s premium rates are calculated [is] not available to the clients.\u201d Lyle R. Jager, 253 Ill. App. 3d at 640. The court also observed that it would be impractical to expect a business to work with locked file cabinets. Lyle R. Jager, 253 Ill. App. 3d at 640.\nThis reasoning applies here as well. Plaintiff has taken measures to guard its client information from the public eye. Plaintiff has made the computerized client profiles accessible by password known only by employees and has given branch managers alone the ability to make printouts of the client files. Plaintiff has also limited Internet and e-mail availability to branch managers in order to reduce the likelihood of electronic distribution of the client information. Plaintiff keeps physical files containing client information in a file cabinet in Gault\u2019s office, and although the cabinet is unlocked, Gault\u2019s permission is required to access it, in contrast to the free access permitted in Lyle R. Jager. But whatever the ease with which the public may acquire the information in plaintiffs client profiles through simple contact with plaintiff, the workers it has placed, or its clients, the preeminent advantage of the profiles, like that of the customer files in Lyle R. Jager, is that they gather the information in one place. Presumably, this is the advantage Grove sought for herself by retaining the Client List after she left plaintiffs employ.\nFor the foregoing reasons, we reject as erroneous the trial court\u2019s factual finding that the information in plaintiffs client profiles and in the Client List that Grove possesses is not confidential information. This erroneous finding was the basis for the court\u2019s (prematurely definitive) legal conclusion that the Covenant is not enforceable. Although the trial court did not expressly say so, it necessarily must have found that plaintiff did not show a reasonable likelihood of succeeding on the merits. We hold that plaintiff indeed has shown such a likelihood based on the apparent enforceability of the Covenant\u2019s confidentiality provision. We remand this case to the trial court for it to reconsider the appropriateness of a preliminary injunction in light of our holding. We recognize that the evidence is unclear whether Grove has shared any information from the client profiles or the Client List with anyone at Accurate, a consideration that pertains to the urgency of plaintiff\u2019s plea for an injunction. On remand the trial court will have to consider such factors in its analysis. Our holding today is limited to the enforceability of the confidentiality provisions of the Covenant.\nFinally, we note that the trial court did not appear to address plaintiff\u2019s claims under the Trade Secrets Act. We direct the trial court to consider on remand whether a preliminary injunction should issue under the Trade Secrets Act.\nFor the reasons stated above, the judgment of the circuit court of McHenry County is reversed and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nGROMETER and BYRNE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE O\u2019MALLEY" } ], "attorneys": [ "Gregory H. Andrews, Renee L. Koehler, and Kerry Lin Davison, all of Andrews, Koehler & Passarelli, PC., of Lisle, for appellant.", "Michael E. Kalland, of Kalland Law Office, of Elgin, for appellee Janet Grove.", "James J. Romag, of Casey & Brannen, of St. Charles, and Charles G. Rose, of Sycamore, for appellee Accurate AJM, Inc." ], "corrections": "", "head_matter": "THE AGENCY, INC., d/b/a The Agency Staffing, Plaintiff-Appellant, v. JANET GROVE et al., Defendants-Appellees.\nSecond District\nNo. 2\u201405\u20140806\nOpinion filed November 16, 2005.\nGregory H. Andrews, Renee L. Koehler, and Kerry Lin Davison, all of Andrews, Koehler & Passarelli, PC., of Lisle, for appellant.\nMichael E. Kalland, of Kalland Law Office, of Elgin, for appellee Janet Grove.\nJames J. Romag, of Casey & Brannen, of St. Charles, and Charles G. Rose, of Sycamore, for appellee Accurate AJM, Inc." }, "file_name": "0206-01", "first_page_order": 224, "last_page_order": 238 }