Revisiting "Damage" and "Loss" Under the Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act is organized about as logically as David Foster Wallace's sprawling masterpiece, Infinite Jest.

For literary fiction, that might be fine. For federal statutes, it's a disaster.

As a result, courts and commentators long have struggled over what parties must prove to establish an actual civil claim under the CFAA. And a great deal of the confusion and disagreement concerns the twin concepts of damage and loss.

At first blush, the terms sound like synonyms. But they're not. For purposes of the CFAA, each term has a precise definition.

The basic confusion has arisen because to state a civil claim, a party must have suffered "damage or loss" by reason of a substantive offense. To compound problems, certain substantive CFAA provisions require a party independently to show "damage," which renders the either/or structure a bit confusing. And a textual reading of the CFAA seems to show that in all cases (really, in all cases that deal with unfair competition) a plaintiff must show compensable "loss."

In other words, it's a total nightmare.

Or is it?

In my opinion, the concepts of damage and loss are complimentary pieces that fit together. They're not substitutes. But to understand this, it's critical to keep in perspective the overall purpose and set-up of the CFAA.

What the CFAA Does (and Doesn't) Protect?

Attorneys too often view the CFAA as a federal trade secret substitute. In other words, attorneys who want the muscle of a federal court try to shoehorn a trade secrets (or duty of loyalty) case into a CFAA violation if they determine a computer somehow was involved in facilitating the underlying act (usually, the downloading of documents). As a result, a large majority of CFAA claims in the employment context never quite fit the elements of the statute.

The CFAA protects a party from damage to computer systems (including files and programs), outside hacking, and theft of computer data. That's it. It is not a broad federal statute that displaces a wide range of contract- and tort-based claims typically reserved for state courts. And because computers are omnipresent in the way parties deal with each other, a broad CFAA construct could have the effect of federalizing competition claims well outside the statute's intent. This is part of the ongoing dispute over the CFAA's reach, a subject on which I and countless others have written.

The Concept of "Damage"

The definition of "damage" under the CFAA is decently plain. Damage is simply the impairment to the availability or integrity of data. For example, if an outsider hacks into a network and causes the deletion of files from a server, this would constitute damage. If an insider copies confidential information that otherwise remains available, this would not constitute damage because the data is still available. I'll return to this, but the word "integrity" is the key to unlocking the confusion that has arisen over when certain conduct causes damage.

Here's an easy way to understand "damage" for CFAA purposes: it's the type of injury the statute was designed to cover. As I'll discuss, the relatively limited statutory definition becomes confusing when applied to data theft cases.

Defining "Loss"

"Loss" is not the same as damage. Where damage defines the nature of the harm, "loss" covers what is compensable arising from that harm. Loss covers either: (1) costs in restoring a computer system, programs, or files; or (2) revenue lost due to an interruption in service.

A couple of examples may help clarify. If an outside hacker launches a denial-of-service attack on an e-commerce website, he can be liable for the revenue lost attributable to server downtime. Similarly, if an insider destroys the only copy of files on a shared server, she can be liable for the costs the company spends to hire a forensic technician to recover those files. These are the classic CFAA offenses.

Understanding the Types of CFAA Cases

The problem in fitting together the concepts of "damage" and "loss" arises from the predicate to Section 1030(g). This is the section of the CFAA that enables a private party to assert a civil claim.

The predicate starts off by stating unambiguously that a party "who suffers damage or loss" for an enumerated offense can maintain a civil cause of action. In reality, that language is either unnecessary or improperly worded. I maintain it's unnecessary.

The Destruction or Hacking Cases

Several provisions of the CFAA independently require a civil plaintiff to show "damage." I refer to these provisions, for simplicity sake, as the data destruction or hacking offenses. They are contained within Sections 1030(a)(5)(A)-(C). By and large, these sub-sections of the CFAA are easy to understand. They include the paradigms I described above: the outsider launching a denial-of-service attack and an insider destroying files.

In these fact patterns, which Section 1030(a)(5) clearly is designed to redress, a court first assesses whether the activity gives rise to "damage" - that is, data or system impairment - and then looks to whether the plaintiff can establish "loss." It makes little sense to view this as an either/or proposition because loss (response costs or lost revenue due to an interruption in service) flows naturally from damage. If a party can show damage, it will show loss (unless the amount is so trivial as to fall short of the CFAA's modest $5,000 jurisdictional minimum).

The Theft Cases

The other provisions of the CFAA that are frequently at issue in competition cases are Sections 1030(a)(2) and (a)(4). Those sub-sections have caused a great deal of dispute among federal courts because of the concept of "access" and whether "unauthorized access" includes misuse of data. Aside from that, both sub-sections generally provide a remedy if a party lacks proper access (however interpreted) and obtains information from a computer either with or without an intent to defraud.

The best way to look at these provisions of the CFAA is that they serve different ends than the destruction or hacking provisions of Section 1030(a)(5). In other words, Sections 1030(a)(2) and (4) provide a remedy for civil theft out of a computer. In the context of these claims, a party is not going to show "damage" to a computer because the very nature of the offense doesn't contemplate system downtime or lost files - unless we reinterpret "damage", which I argue below we must. Rather, the claim deals with the taking of information (trade secret or not). But, by virtue of the claim, the owner still has the same data (or else it simply would be a Section 1030(a)(5) claim).

From my perspective, a plain reading of the CFAA requires a plaintiff to show loss in virtually any CFAA case involving unfair competition. But since loss appears limited to damage assessment, recovery costs, and lost revenue due to a service interruption, assessing loss in a "theft" case is much more difficult to grasp. The computer isn't damaged; the data isn't gone; and the server hasn't crashed.

For this reason, courts seem to have stretched the meaning of "loss" to include the cost of retaining a forensic expert to track wrongdoing. And in the context of a CFAA theft case under 1030(a)(2) and (a)(4), this may be a "cost responding to an offense." But it's awfully difficult to fit that into the definition of "loss" unless we do more work to reconcile the CFAA as a whole. This issue receives little attention because there's so much noise surrounding the other elements of a theft case, in particular whether the term "unauthorized access" can apply to insiders who have credentials to use a computer system but act in ways contrary to their employers' interests.

Reconciling "Damage" and "Loss" Under the CFAA

As it stands, here's what seems clear. For a hacking or data destruction case under Section 1030(a)(5), a plaintiff must show damage and loss. This is based simply on a textual reading of the statute. Loss should flow naturally from damage. These are not difficult cases to understand, which is hardly a surprise given that they fall within the statute's prime focus.

A theft case is different. A plaintiff needs to show a loss, but it does not have to show damage. That much also seems clear from the plain language of the statute. Practically speaking, though, should it prove damage? I think so.

But to do this in a theft case arising under Section 1030(a)(2) or (4), a court would have to interpret "damage" as a compromise to the manner in which data was stored or protected. Arguably, this is consistent with the statutory definition, which references an impairment to the integrity of data.

Then, of course, the plaintiff still would need to show a loss. To me, it's difficult to argue loss without showing damage because (as I've noted) the concepts seem to be complements - not substitutes. Plaintiffs have figured this out by engaging forensic firms to track unauthorized access and stolen information out of a protected computer. I'm not totally convinced this is an expense that qualifies as a "loss," but if courts expand the definition of damage, then I guess "loss" would have to include investigation expenses. Regardless, it's not a totally unreasonable reading of the statute to include these expenses.

Ultimately, courts have little choice. They have to expand the definition of damage to give meaning to Section 1030(a)(2) and (4). Otherwise, if damage and loss are given a narrow reading, there's no claim under the CFAA for theft cases. It's easy to say now that the definitions simply don't match up, but it would be absurd to find there's no way to define damage for theft cases.

This expansive definition of damage may solve the riddle that confronts cases involving theft of data. More to the point, it demonstrates precisely why CFAA theft cases (as opposed to hacking or data destruction cases) should be limited to access by outsiders - those who truly don't have the credentials to access data in the first place. This is another way of saying the narrow view of what unauthorized access means is consistent with the purpose of the statute and in particular the concepts of damage and loss. Otherwise, the CFAA is little more than a substitute for state laws that already govern trade secrets theft and breach of the duty of loyalty. And given that the CFAA contains broad criminal sanctions, this is an interpretation courts should be very hesitant to adopt.

Trade Secrets Whistleblower SLAPPed In Effort to Dismiss Lawsuit

Several weeks ago, John Marsh, Russell Beck, and I discussed on the Fairly Competing podcast the special problems that arise when companies pursue so-called "whistleblowers" for trade secrets misappropriation.

As John wrote on his blog this Spring, such suits may have the unintended consequence of giving the whistleblower a public forum to air her grievances and enable her to draw attention to facts that are potentially embarassing or harmful to the company.

One of the issues that can arise concerns the whistleblower's claim that her activity is protected under the First Amendment. Many states, including California and Illinois, have anti-SLAPP statutes that enable parties who face frivolous strike suits to pursue an early, special motion to dismiss. (SLAPP is an acronym for "strategic lawsuit against public participation.").

This procedure generally allows for: (1) consideration of matters outside the pleadings themselves; (2) a stay of discovery; and (3) mandatory cost- and fee-shifting. Traditionally, SLAPP suits (and anti-SLAPP) motions arise from defamation claims brought against a group of citizens, or notable citizens who have spoken out on a public issue. But they can arise from claims of trade secrets theft, because disgruntled employees often feel as though the public has a right to know of certain non-public information concerning a company's business practices, services, or products.

In our episode of Fairly Competing, John, Russell, and I discussed a particularly interesting suit in California in which James Clark accused Anheuser-Busch (his ex-employer) of filing a SLAPP suit. According to Clark, A-B sued him after he participated in (really, initiated) a class action related to the A-B's supposed mislabeling of alcohol content on its beer products. A-B's claim was for trade secrets misappropriation, arising out of Clark's supposed taking of beer specification sheets and other materials before he left A-B, which arguably were instrumental in the development of the class action suit.

Last week, the California court denied Clark's special motion to dismiss, finding that the trade secrets suit was not a SLAPP under California law. The Court determined Clark's protected activity - that is, participating in the class action against A-B - was "merely incidental" to the claims of trade secrets misappropriation and therefore beyond the anti-SLAPP law. Put another way, A-B's claims stood on their own without reference to the class action suit.

The court's ruling reflects the narrow set-up of California's anti-SLAPP law. In particular, California law does not specifically cover claims brought "in response to" government petitioning activity. Had such a provision been part of the statutory scheme, the court may have considered a number of other factors bearing upon A-B's claim. Illinois' anti-SLAPP law, for instance, is much broader, in that a responsive or retaliatory claim may fall directly within the statute. Courts in Illinois consider on a case-by-case basis whether the suit is truly relatiatory and will examine "retaliatory intent."

However, the court in the A-B case stated that "evidence of [A-B]'s motivation does not establish" that its claims "arose from Defendant's protected activity." The court's decision not to consider subjective intent may be surprising given the nature and purpose of anti-SLAPP laws. As a practical matter, this objective analysis has the effect of requiring courts to assess the nexus, or fit, between the underlying claim and the allegedly retaliatory claim. If the former has an independent factual and legal basis, then it does not "arise from" petitioning activity.

The court did not consider a relatively recent amendment to California's anti-SLAPP law, Section 425.17 of the California Code of Civil Procedure. That section, enacted to prevent "a disturbing abuse" of the anti-SLAPP law, meant to exempt certain actions arising from certain commercial statements or conduct.

The provision is densely worded and may not have directly fit the A-B/Clark dispute. But, at the very least, it recognizes in the SLAPP context the principle that commercial speech generally has more limited protection under the First Amendment compared with non-commercial interests. In this sense, California seems to be shifting away from allowing anti-SLAPP motions if they do not truly concern a matter of important public interest.

My Issue With PRATSA: The Rule of Lenity

For the most part, I am deferring extended discussion of the proposed new trade secrets law to my (friendly) competitors, John Marsh of Hahn Loeser and Robert Milligan/Josh Salinas of Seyfarth Shaw. Their posts are excellent and insightful, as usual.

In short, the Private Right of Action Against Theft of Trade Secrets Act (PRATSA) creates a federal civil cause of action for trade secrets misappropriation, something commentators have debated for years. So, too, by the way, did the Fairly Competing hosts - John Marsh, Russell Beck, and me - several weeks back!

As John described in his post, PRATSA is a companion law to Aaron's Law - legislation that would narrow the reach of the Computer Fraud and Abuse Act and eliminate its application to garden-variety misappropriation claims in the workplace. John aptly describes PRATSA and Aaron's Law as a trade-off in that PRATSA expands the potential remedies for trade secrets theft, while Aaron's Law limits the CFAA to traditional forms of computer hacking.

In its current form, PRATSA is styled as an amendment to the Economic Espionage Act, which is in Title 18 of the United States Code dealing with crimes and criminal procedure. And - much like the CFAA (also housed in Title 18) - it would graft onto the statute a civil remedy. The problem, in my opinion, is something known as the rule of lenity.

The rule of lenity is fairly simple in concept: in construing a criminal statute, a court must interpret any ambiguity in favor of the defendant. In CFAA cases, many courts have applied the rule of lenity to narrow the reach of the statute and limit the types of activity that exceed authorized access to a protected computer under the statute. Put simply, the rule of lenity is a thorn in a CFAA plaintiff's side because a defendant simply can rely on a time-honored rule of construction to argue for a narrow interpretation. That argument has worked very well.

The same problem potentially exists with PRATSA.

As Robert and Josh identify in their discussion, the bill does not address many substantive issues - such as damage remedies and fee-shifting. Without further amendments (which seems unlikely), a defendant could argue that common remedies available under state trade secrets law (such as royalty damages) are not available under the rule of lenity. That may discourage plaintiffs from using PRATSA, since it would not displace state civil trade secrets laws.

If PRATSA were to move forward through committee, it seems inevitable that some of the deficiencies would be addressed.

We've Been Down This Road Before: More on Fifield

Many thanks to all the readers who've e-mailed me or posted links to my "dissenting opinion" in Fifield v. Premier Dealer Services. I'd like all of you to know I'm in the process of recovering. Your words of support and encouragement have been, well, overwhelming.

But I'm not done yet.

I have more to say. It's part of my healing.

This is not the first time the Appellate Court has gone off the tracks on non-compete law.

It's the third.

I've written so many times about the first - the Appellate Court's wholly-created, now-defunct legitimate business interest test, and the ensuing Reliable Fire opinion - that I won't repeat it here.

The second deserves more discussion.

The Ancillarity Problem

The Fifield opinion (and I use that term in the most liberal sense) reminds me of an open wound that festered in the 1990s. For a few years, the Appellate Courts disagreed over what became known as the "ancillarity" doctrine.

In essence, the problem was this:

Must a non-compete covenant for at-will employees be ancillary to an actual employment contract, or just the relationship itself?

Courts split over this question.

One case (Creative Entertainment v. Lorenz) favored a more narrow approach as to enforceability and held that the covenant not to compete must be contained within some broader form of an employment contract. That is to say, the contract had to contain additional terms like the period of employment, termination conditions, and rate of pay.

Importantly, Creative Entertainment appeared to suggest (if not outright state) that covenants for at-will employees were "naked agreements," since there was no promise of a definite term of employment exchanged for the restrictive covenant. That, in essence, is the concern underlying Fifield. What, truly, does an employee receive in exchange for giving up some right to compete in the future?

Creative Entertainment, the step-father to Fifield, had a shorter shelf life than most reality TV shows.

It took less than a year for another district of the Appellate Court of Illinois to disgree with Creative Entertainment. That district (which perhaps not coincidentally tried to eliminate the legitimate business interest test a few years ago) liberalized the ancillarity requirement. It held, in Abel v. Fox, that the restrictive covenant need only be ancillary to a valid relationship, not an employment contract. It specifically examined the Restatement of Contracts to conclude that Creative Entertainment was too rigid in its analytical framework. Put another way, an at-will relationship was "valid" for purposes of determining ancillarity. It never stated, or suggested, that an employer must continue employment for a period of time to validate the covenant.

The more liberal ancillarity approach took hold quickly. Creative Entertainment was effectively reversed just a few years later. The case is, and has been, a total afterthought. No lawyer in Illinois discusses ancillarity anymore. It's just widely assumed - rightly so - that the employment relationship itself solves the problem.

The Continued Employment Redux

All this sort of begs the question: Doesn't the rejection of the conservative ancillarity doctrine from Creative Entertainment undermine the consideration problem now identified in Fifield?

More particularly, doesn't it illustrate precisely why the continued employment rule should be confined to "afterthought" covenants - that is, those signed after the relationship started?

In these afterthought covenant cases, it is entirely proper to examine the issue of consideration and whether continued employment suffices. In my view, it is appropriate to find consideration lacking when: (a) the employer terminates the relationship without cause, and (b) the continued employment, considering the totality of the circumstances, was insubstantial. (Although I'm opposed to the arbitrary "two-year" rule Fifield endorses, in the larger scheme of things, it's not a total abomination.)

When assessing covenants signed at the start of the relationship (the Fifield problem), the ancillarity and consideration inquiries collapse into one.

The Final Question - Part 1

This leads to the penultimate problem: What happens if the employee signs the covenant at the start of the relationship but the employer terminates the relationship within a short amount of time?

This is clearly the Fifield problem simplified. I've written about this before, too. There are multiple ways to deal with this issue, which I believe in practice arises very infrequently.

First, courts can remedy this problem through the affirmative defenses of unclean hands or unconscionability. Little more need be said. They're good defenses.

Second, the court can and should consider under the Reliable Fire test the totality of the circumstances before enforcing the covenant. That test requires courts to determine the hardship to the employee that may result from enforcement. Certainly, an involuntary termination bears on the question of hardship.

Third, courts could create a rebuttal presumption against enforcement in the context of involuntary discharge, to be overcome by a showing of need under a clear and convincing evidence standard of proof. This would serve a proper balance between the typical discharge case (no enforcement needed) and one that isn't subject to categorical rules (a pretty rare case).

The Final Question - Part 2

Now, to conclude. The issue of voluntary resignation and consideration.

Right now, courts in Illinois appear not to distinguish the enforceability of covenants for employees who quit and those who get fired. In my view, this is a mistake.

For an at-will employee who signs a non-compete, and then leaves, this is not a consideration problem. The employer hasn't removed the consideration - the employment itself - in this scenario. Any mitigating circumstances from the employee's perspective are best addressed through an overall reasonableness analysis, which Reliable Fire expressly endorses.

Put simply, an employee who leaves always has the ability to argue enforceability. It is inconsistent with past precedent - both Reliable Fire itself and the ancillarity cases - to find that an at-will employee has a two-year option to revoke his or her non-compete unilaterally.

The Fourth Justice: My Dissenting Opinion in Fifield v. Premier Dealer Services

Although many commentators are discussing the Appellate Court of Illinois' opinion in Fifield v. Premier Dealer Services, Inc., you may not realize that I sat in on that case as the fourth justice. Unfortunately, my colleagues on the Court forgot to include my dissenting opinion.

So, I figured this blog was as good a place as any to fix that mistake.

"Justice Vanko, dissenting, throwing things in chambers, drinking an Old Fashioned, and about ready to lose his mind:

I dissent. A lot.

In today's ruling, the Court decides in the blink of an eye to rewrite the law of non-compete agreements for at-will employees. Perhaps this is a job the Supreme Court of Illinois wishes, one day, to undertake. Perhaps our General Assembly - if they can put this pension nonsense behind us - will see fit to change the law. But it decidedly is not the function of an intermediate appellate court to work such a fundamental change in the law without so much as a whisper of reasoned analysis.

The Court holds (at paragraphs 13-17) that "continued employment" constitutes sufficient consideration for a restrictive covenant as long as it lasts for two years or more. Fine. But, the Court then ignores decades of case law and sheer common sense. It lumps together this continued employment rationale in two vastly different contexts: (a) a covenant signed at the start of an employment relationship, and (b) a covenant entered into after the relationship begins (commonly known as an "afterthought" covenant).

No Illinois court has merged the analysis of continued employment like the majority does today. In the case of Diederich Ins. Agency, LLC v. Smith (Fifth District), the employee signed a non-compete roughly six months after the beginning of his employment. The same holds true with Lawrence & Allen, Inc. v. Cambridge Human Resource Group, Inc. (Second District), in which the employee signed an afterthought covenant not to compete 18 months after starting his job. Finally, Brown and Brown, Inc. v. Mudron (Third District) confronted a situation where "existing employees were required to sign an employment agreement" with a corporate successor.

I have just summarized all the relevant precedents the Court cites. Shorthand: N/A. To equate these cases with this one borders on lunacy. For some reason, the Court neglects to point out that the dozen or so decisions of this Court discussing and applying the continued employment doctrine all arise in the context of afterthought covenants. #NotASurprise. #Uncontroversial.

Recognizing its precedent gap, the Court pivots to a district court decision in Bires v. WalTom, LLC, which is not binding on this Court. To support its ruling, Bires relies on dicta from Curtis 1000, Inc. v. Suess. In Curtis 1000, Judge Posner was concerned with the adequacy of consideration when the employer - not the employee - obtained a restrictive covenant and then elected to terminate the employment relationship. Such a fact-pattern elicits notions of bad faith, fraud, lack of mutuality, unconscionability, and a host of other legal terms that only a lawyer could love. Nothing in that case suggests Judge Posner would have applied the continued employment doctrine to a fact-pattern in which the employee was the one who elected to end the relationship.

To recap, mathematically speaking:

(district court case X 1) + (dicta in Seventh Circuit case X 1) ≠ (consistent decisions of this court on continued employment doctrine X approximately 19) + (common sense X infinity)

The majority (which curiously never mentions or rebuts my dissent...#Waiver #Estoppel) fails to discuss why we should treat covenants signed at the start of employment differently than those afterthought covenants which pose special problems.

It has to do with the idea of reasonable expectations.

Suppose Fifield here signed on with Premier Dealer Services and had the expectation he would not be bound to any kind of a non-compete. That may have been an important factor in his decision to begin the relationship. He might have foresaken other equivalent opportunities. And over time, his status as a free-agent begins to cement. If his employer foists upon him a non-compete after years of hardened expectations, then it makes some sense for the law to step in and inquire as to the true consideration provided for that non-compete.

It's not the same case if Fifield walks into the relationship with Premier Dealer Services knowing full well he has to sign the non-compete to take the job in the first place. For starters, he isn't tricked. Both sides have put their cards on the table. He can try to negotiate the terms (which Fifield did here!). And he's in a better position to evaluate other opportunities before agreeing to be bound to the contract.

Yet, we find ourselves in a landscape where the Court finds the parties' reasonable expectations don't matter. Over the past several years, the continued employment doctrine has evolved from its historical roots. It originally was intended to eliminate an employer's chicanery into tricking an employee into signing a restrictive agreement, only to discharge him or her shortly thereafter. Our appellate courts then applied the doctrine regardless of which party - employer or employee - ended the relationship. That wasn't very smart. Now, we've extended it to all employees who are terminable at-will (that is, about 95 percent of private sector workers). That really wasn't very smart. And to put the cherry on top of this sundae, we've somehow spirited up a bright-line where the continued employment must last at least two years. That's just flat-out making stuff up. Welcome to the vortex of judicial activism and arbitrary rules!

So we've succeeded in giving employees a two-year option in which they can decide whether to breach a covenant not to compete or solicit customers. Terrific. Talk about creating uncertainty. This decision comes at great social cost. For starters, it will reduce companies' incentives to train younger workers and give them access to clients. It almost begs employers to limit their access to company secrets (particularly in that heart-stopping period right before an employee's two-year option window is about to close). This can only lead to declining productivity, and with where India and China are at in that regard, God help us.

Beyond that, we've screwed the lawyers. For years, they've operated under the assumption the continued employment doctrine applied to afterthought covenants only. Now, they'll have to start calling their clients and tell them we've subtly shifted the law on them. Why doesn't anyone care about lawyers? I don't get this.

Perhaps I'm being too naive. The lawyers will find creative ways around today's ruling. They'll write non-compete agreements so that something else provides consideration beyond the inception of employment itself. Imagine all the self-serving consideration paragraphs we now have to analyze. So I guess consideration could be a signing bonus of $2,500 (which surely will be deducted from the employee's other forms of compensation), eligibility to receive a year-end bonus, or access to company confidential information. One lawyer already has suggested sufficient consideration might come from making the covenant inoperable in the event of a termination without cause. Desperation is the mother of all invention!

In sifting through this precedential mess and trying to make sense of where we're at now, I am reminded of a quote from one of the great American movies of my lifetime - Billy Madison - which somehow seems fitting here:

Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
 

I would hold simply this: The continued employment doctrine only applies in the event of a covenant not to compete signed after the start of employment. And in all cases, the Court must consider the totality of the circumstances to determine whether continued employment provides sufficient consideration for an afterthought covenant, consistent with the general principles in Reliable Fire Equipment v. Arredondo. #CommonSense #JudicialRockStar #Pragmatist

I beg the lawyers for Premier Dealer Services to petition for rehearing on this issue. Or appeal to the Supreme Court of Illinois. I need a drink."

And here's the actual Opinion.

Fifeld v. Premier Dealer Services - Opinion by Ken Vanko