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March 12, 2004.


The opinion of the court was delivered by: MATHEW KENNELLY, District Judge


Quixote Transportation Safety, Inc. ("QTS") seeks to enforce the non-compete and nondisclosure provisions of pro se defendant Anthony Cooper's expired consulting contract with QTS. The case is before this Court on QTS's motion for summary judgment and request for injunctive relief. Cooper adamantly denies using or disclosing QTS's confidential information to the benefit of QTS' competitors. Because a genuine issue of fact exists, we deny QTS' motion for summary judgment.


  Tony Cooper, a British citizen who resides in Cyprus, has worked in the Middle East since 1968 and exclusively in the traffic safety field since 1976. Def.'s Resp. ¶¶ 1-2. He sells paint for road stripping, reflective pavement markers, reflective sheeting, road striping machines, speed signs, traffic signal cameras and other traffic products on behalf of several companies. Pl.'s Facts 1! 36. He also is the chief executive of HSP Group, which sells traffic products. Id. ¶ Page 2 37, QTS, a Delaware corporation that markets, sells and distributes transportation safety equipment manufactured by affiliated businesses, retained Cooper as a consultant to sell QTS's crash cushions, flexible posts and changeable message signs to Middle Eastern governments and government contractors. Id. ¶¶ 1, 2, 19. Cooper's seventeen-year relationship with QTS was fruitful: QTS's annual gross profits from Cooper's activities ranged from $2,000 to $600,000, Pl.'s Facts ¶ 16, and Cooper earned $1,000 per month as a consulting fee, a 10 percent commission on the first $300,000 of QTS products sold and 15 percent thereafter, and reimbursement for travel in the region. See Consulting Agreement (Jan. 1, 2001 to Dec. 31, 2001) ¶ 3.

  Cooper chose not to renew his contract with QTS in 2002 when QTS asked him to sign a new consulting agreement that materially altered the terms of their previous agreement by eliminating the monthly consulting fee, reducing his commission to 5 percent of QTS products sold, and limiting travel reimbursements to those meetings QTS requested Cooper attend. Def.'s Resp. at 2-3; Consulting Agreement (July 1, 2002 to June 30, 2004) ¶ 3. Cooper currently represents several traffic product companies in the Middle East, either on his own or in his capacity as chief executive of HSP Group. Pl.'s Facts ¶¶ 36, 37; Def.'s Resp. at 3-4. Since the expiration of his contract with QTS, Cooper has begun representing Barrier Systems, Inc. in the Middle East. Pl.'s Facts ¶¶ 29-30; Def.'s Resp. at 4.

  Cooper's previous consulting agreements with QTS included non-disclosure and non-compete clauses. The non-disclosure clause states:

  Except as otherwise required in the performance of his duties and obligations hereunder, during the Term and at all times after the termination of this Agreement for whatever reason, Consultant will refrain from, directly or Page 3 indirectly, using for the benefit of anyone other than the Company, or transferring or disclosing to others, without the prior written approval of the Company, any information not generally known in the Company's trade or industry about any of the following ("Confidential Information"):

(a) information relating to the Company's financial or business status or plans, sales or marketing methods, methods of doing business, suppliers, customers, customer usages and/or requirements; . . .
Consulting Agreement (January 1, 2001 to December 31, 2001) ¶ 4.1. The non-compete clause states:
During the Term and until the third anniversary hereof, Consultant will not, without prior written consent of the Company's Board of Directors, become directly or indirectly associated (as an owner, partner, employee, independent contractor, consultant, advisor, or in any other capacity calling for the retention of personal services or acts of management, operation or control) with any person, firm, joint venture, partnership, corporation, institution or enterprise that engages in, or intends to engage in, a line of business which supplies, manufactures, sells or distributes any technologies or products competitive with or similar to the Company's products.
Id. ¶ 6.1.

  QTS claims that Cooper is infringing his non-compete and non-disclosure agreements by selling crash cushions on behalf of Barrier Systems, Inc, in direct competition with QTS's crash cushions. Cooper denies disclosing or using any confidential information. Def.'s Resp. at 4-5. Cooper admits that Barrier Systems markets crash cushions in competition with QTS, but he points out that Barrier Systems' main product is a moveable barrier system and the company has not sold any crash cushions in the Middle East. Id. at 2. Cooper appears concerned that because QTS has several subsidiaries that market a wide range of traffic products, the non-compete agreement if enforced would make it impossible for him to continue to work in the traffic safety field because many of the companies he currently works for have at least some products competitive with those marketed by QTS or its affiliates. Id. at 3-4. Page 4

  QTS states, however, that it is not trying to bar Cooper from selling all traffic safety products marketed by QTS-affiliated companies. QTS has expressly stated that its restrictive covenants with Cooper do not bar him from selling paint for road stripping, reflective pavement markers, reflective sheeting, road striping machines, speed signs, traffic signal cameras and other traffic products or other products sold by HSP. Pl.'s Facts ¶ 36-38. QTS says it only seeks to prevent Cooper from selling crash cushions, flexible posts and changeable message signs. Pl.'s Reply at 6.

  The case presents a note-worthy complication. Cooper, who is located in Cyprus and says he is not familiar with our laws or rules of procedure, says he cannot afford to hire an attorney and has, thus far, represented himself in these proceedings. Although he responded to QTS' complaint and motion for summary judgment, he did not file the documents under oath. QTS urges us to deem its statement of facts admitted and disregard those factual assertions made by Cooper. But QTS rightly recognizes that the Court has discretion in how it handles procedural noncompliance. Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) ("[T]he decision whether to apply the [local] rule strictly or to overlook any transgression is one left to the district court's discretion."). The two responses Cooper filed in this case, read like declarations of facts of which Cooper has first-hand knowledge — like an affidavit. However, Cooper did not swear to the truth of the statements made in the documents. Rather than penalize Cooper for failing to comply with the Local Rules when it appeared he was making a good faith attempt to respond to QTS' suit, the Court directed Cooper to advise us "in writing, within 14 days of this order, whether he swears under the penalty of perjury as provided by U.S. law that all statements in the response are true." Order (dated February 18, 2004). The Court received a Page 5 document from Cooper stating: "I, Anthony A. Cooper, swear under the penalty of perjury as provided by U.S. law that the statements made in the `Defendant's Response to the QTS' Claim' are true."*fn1 We are satisfied that the facts alleged in Cooper's Response can suffice for a Local Rule 56.1(b)(3) statement. Therefore, it is proper for the Court to rely on facts asserted by Cooper in his response.


  Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court's "function is not to weigh the evidence but merely to determine if `there is a genuine issue for trial.'" Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002) (citation omitted). The Court evaluates admissible evidence in the record in the light most favorable to the nonmoving party. Id. But "[t]he nonmovant will successfully oppose summary judgment only when it presents `definite, competent evidence to rebut the motion.'" Vukadinovich v. Bd. of Sch. Tr. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002) (citation omitted).

  QTS argues that Cooper should be held to the terms of the agreement he signed. However, "[i]t is improper under Illinois law to enforce a non-competition clause merely because the parties agreed to such an arrangement." Advent Electronics, Inc. v. Buchman, 112 F.3d 267, Page 6 274 (7th Cir. 1997). First, the Court must inquire into whether "the covenant is ancillary to a `valid contract.'" Abel v. Fox, 274 Ill. App.3d 811, 813-14, 654 N.E2d 591, 593 (1995). To be enforceable "[t]he covenant must be subordinate to the contract's main purpose." Id. at 814, 654 N.E.2d at 593. The non-compete and non-disclosure agreements were clauses in a longer consulting agreement, which specified the terms of Cooper's employment with QTS, including Cooper's responsibilities, compensation and length of employment. Thus, the clauses were sufficiently ancillary ...

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