Corp. v. James Chisholm & Sons, Inc., 133 Ill. App.3d 238, 88
Ill.Dec. 336, 341-343, 478 N.E.2d 651, 656-58 (1985). In fact,
the appropriate method for declining to grant declaratory relief
is to dismiss the action. Lihosit v. State Farm Mut. Auto. Ins.
Co., 264 Ill. App.3d 576, 201 Ill. Dec. 193, 196, 636 N.E.2d 625,
ADM relies heavily on PepsiCo, Inc. and Corroon & Black as
supporting its claim for relief in this case. In PepsiCo, Inc.,
the Seventh Circuit affirmed an injunction granted by the
district court prohibiting a former employee from disclosing
trade secrets and confidential information. PepsiCo, Inc., 54
F.3d at 1272. However, in that case, the former employer
presented evidence of a number of trade secrets and confidential
information it desired protected and to which the former
employee, who had been offered a job with a competitor, was
privy. See PepsiCo, Inc., 54 F.3d at 1265. In Corroon &
Black, an employer sued a former employee who left to work for a
competitor and solicited the employer's customers. The Appellate
Court reversed the circuit court's summary judgment in favor of
the employee. The Court concluded that genuine issues of material
fact existed regarding whether the former employer had a
protectable proprietary interest in its customers so that the
restrictive covenant signed by the employee was enforceable.
Corroon & Black, 98 Ill.Dec. at 670-71, 494 N.E.2d at 792-93.
Neither case, however, involved a declaratory judgment action.
More importantly, in both cases cited by ADM, facts were
presented showing that the employer had a protectable interest in
confidential information and the restrictive covenant was
reasonably necessary to protect that interest. The cases cited do
not support ADM's claim for a declaratory judgment under the
circumstances presented in this case.
ADM has offered no facts to this court showing that the
restrictions in the Non-Disclosure Agreement are reasonably
necessary to protect confidential information. Consequently, this
court concludes that, under Illinois law, the enforceability of
the Non-Disclosure Agreement simply cannot be resolved in the
abstract. Accordingly, it is clear that ADM is not entitled to
summary judgment on Count V of its Amended Complaint. In fact,
this court concludes that Count V of ADM's Amended Complaint does
not state a claim upon which relief can be granted. Fed R. Civ.
P. 12(b)(6). As a result, this court is now providing notice to
ADM that it intends to dismiss Count V of ADM's Amended Complaint
with prejudice. ADM is allowed fourteen (14) days to file any
objections to the dismissal of Count V of its Amended Complaint.
See Stewart Title Guar. Co., 74 F.3d at 836-37.
IV. CLAIMS BASED UPON ALLEGEDLY ILLEGAL TAPING
ADM argues that Whitacre engaged in extensive secret taping of
conversations with his colleagues at ADM for a period of 2½
years, from November 1992 to June 1995. ADM argues that this
extraordinary invasion of privacy violated both the federal
wiretapping statute and Illinois' Eavesdropping Act. This court
initially notes that ADM has failed in its attempt to portray
itself as the innocent victim of Whitacre's wrongdoing. This
court notes that, based in part on the tape recordings made by
Whitacre, ADM pleaded guilty to price-fixing and paid a fine of
$100 million. See United States v. Andreas, 39 F. Supp.2d 1048,
1055-56 (N.D.Ill. 1998). Also, as previously noted, ADM
executives Michael D. Andreas and Terrance S. Wilson were both
found guilty of price-fixing on September 17, 1998. Andreas and
Wilson were each sentenced to two years in prison on July 9,
1999. See Andreas, 1999 WL 515484, at *15.
In addition, Whitacre contends that ADM is "not entitled to
declaratory relief nor an injunction prohibiting dissemination of
the tapes or their contents." This court finds that this point is
well taken. Moreover, the court notes that ADM submitted a
proposed Order to this court with its Motion for Summary
Judgment. The proposed
Order includes the following language:
The Court ENJOINS Mark E. Whitacre, his agents, his
servants, his employees, his attorneys, and any
person in active concert or participation with him or
them who receives actual notice of this order, from
using, disclosing, or divulging or endeavoring to
use, disclose, or divulge the tapes make by Whitacre
of internal ADM conversations, copies of the tapes,
information stored on the tapes or copies thereof, or
any information derived directly or indirectly from
the tapes. The Court further commands Mark E.
Whitacre, his agents, his servants, his employees,
his attorneys, and any person in active concert or
participation with him or them who receives actual
notice of this order, to deliver any tapes, copies of
the tapes, or other documents or things containing
any intercepted information to the Court for
placement under seal or destruction.
The court reminds ADM that Whitacre is the only party defendant
in this action. Therefore, the court only has jurisdiction over
the parties to this action, which are ADM and Whitacre.*fn1 It
seems unlikely that Whitacre, now serving consecutive prison
terms of 108 months and 20 months, retains possession of any of
the tape recordings. In fact, based upon case law provided to
this court by ADM, the tape recordings made by Whitacre: (1) were
used in the criminal trial of United States v. Andreas,
39 F. Supp.2d 1048 (N.D.Ill.) and are already part of the public
record; or (2) are in the custody of the Department of Justice.
In re High Fructose Corn Syrup Antitrust Litigation,
46 F. Supp.2d 819, 821 (C.D.Ill. 1999). Obviously, the order proposed
by ADM is inappropriate based upon the facts presented and will
not be entered by this court.
This court further notes that it has reservations about whether
declaratory relief is appropriate regarding these counts of ADM's
Amended Complaint. It is certainly questionable in this case
whether an "actual controversy" regarding the tapes exists
between ADM and Whitacre, based on the situation where it appears
that Whitacre does not have either possession or control over the
tape recordings. This court reminds ADM that any relief granted
will be narrowly tailored to the parties to this case and any
actual controversy between them.
A. FEDERAL LAW
ADM first contends that it is entitled to relief because
Whitacre's taping violated Title III of the Omnibus Crime Control
and Safe Streets Act of 1968 (18 U.S.C. § 2510 et seq.) (Title
III). Section 2511 of Title III provides that any person who
"intentionally intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any wire,
oral, or electronic communication . . . shall be subject to suit
as provided in subsection (5)." 18 U.S.C. § 2511(1). However, §
2511 also provides:
(c) It shall not be unlawful under this chapter for
a person acting under color of law to intercept a
wire, oral, or electronic communication, where such
person is a party to the communication or one of the
parties to the communication has given prior consent
to such interception.
(d) It shall not be unlawful under this chapter for
a person not acting under color of law to intercept a
wire, oral, or electronic communication where such
person is a party to the communication or where one
of the parties to the communication has given prior
consent to such interception unless such
communication is intercepted for the purpose of
committing any criminal or tortious act in violation
of the Constitution or laws of the United States or
of any State. 18 U.S.C. § 2511(2)(c), (d).