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AMFM Broadcasting, Inc. v. Osowiec

April 11, 2008

AMFM BROADCASTING, INC., PLAINTIFF,
v.
REBECCA OSOWIEC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

In this case, Rebecca Osowiec left her job selling radio advertising for Clear Channel and went to work for another Chicago radio station, this one owned by Citadel. At the time she began her employment with Clear Channel, Ms. Osowiec signed a non-compete agreement ("Agreement") in which she agreed that, for 180 days after her employment with Clear Channel ended, she would not work for any radio or television station in the greater Chicago area (Chicagoland).

Following Ms. Osowiec's departure-and the commencement of her employment with a Citadel-owned station-Clear Channel initiated this suit, seeking, among other things, injunctive relief. Clear Channel wanted to enforce the non-compete agreement Ms. Osowiec had signed. On March 17 I imposed a temporary restraining order (TRO) and set a hearing for the following week on Clear Channel's application for a preliminary injunction. I held a substantive hearing on April 8 and 9, at which I heard from several witnesses, including Ms. Osowiec. At this time, I deny further extension of the TRO.

II. STANDARDS FOR INJUNCTIVE RELIEF TO ENFORCE NON-COMPETE AGREEMENTS

In order to be entitled to injunctive relief,*fn1 Clear Channel must show that: (1) it has a protectible interest, such as near-permanent customer relationships or confidential information; (2) no adequate remedy at law exists; (3) it will suffer irreparable harm if the injunction is not granted; and (4) there is a likelihood it will succeed on the merits. Appelbaum v. Appelbaum, 823 N.E.2d 1074, 1081 (Ill. App. Ct. 2005) (citing Lyle R. Jager Agency, Inc. v. Stewart, 625 N.E.2d 397 (1993)). I also must consider whether the balance of hardships supports granting injunctive relief. See Keefe-Shea Joint Venture v. City of Evanston, 773 N.E.2d 1155 (Ill. App. Ct. 2002).

III. PLAINTIFF HAS REASONABLE LIKELIHOOD OF SUCCESS ON ESTABLISHING THAT THERE IS A PROTECTIBLE INTEREST

Illinois courts recognize two ways in which a party can establish that it has a protectible business interest:*fn2 "(1) it can show the employee acquired the party's confidential information and attempted to use that information for his own benefit; or (2) it can show it has a near-permanent relationship with its customers, and but for his employment with the party, the employee would not have had access to those customers." Office Mates 5, North Shore, Inc. v Hazen, 599 N.E.2d 1072 (Ill. App. Ct. 1992).

While it is a somewhat close call, I find that Plaintiff has shown a sufficient likelihood of success on the existence of a legitimate business interest. I determine that Plaintiff establishes that it has near-permanent relationship with its customers, in part because I credit the testimony from Clear Channel's employees stating that 70% of their customers are repeat business.*fn3 In addition, I find that Ms. Osowiec acquired Clear Channel's confidential information, in the form of training methods, pricing data, and operation.

In sum, I find that Plaintiff has shown a sufficient likelihood of success on the question of protectible interest under the existing standard. But see Springfield Rare Coin Galleries, Inc. v. Mileham, 620 N.E.2d 479, 488 (Ill. App. Ct. 1993) ("[A] near-permanent relationship with customers is generally absent from businesses engaged in sales . . . . [and] is not generally present in a business which does not engender customer loyalty by providing a unique product or personal service, and customers of the business utilize many suppliers simultaneously to meet their needs."). While I conclude that Plaintiff has carried its burden at this preliminary stage, this is this is by no means a determination about whether Plaintiff's case is proved.

IV. IRREPARABLE HARM / INADEQUATE LEGAL REMEDY

I find that Plaintiff has carried its burden on both the irreparable harm and the inadequate legal remedy prongs because Clear Channel's loss of customer relationships cannot be quantified.

V. BALANCE OF HARDSHIPS

I find that the balance of hardships cuts in favor of Defendants; it is on this basis that I decline to extend the TRO. Ms. Osowiec was a relatively low level employee whose share of customer relationships was fairly small. Her knowledge of the details of pricing methods has-even according to the testimony of Plaintiffs' witnesses-substantially expired and continues to expire rapidly. According to both the terms of the agreement and the testimony of Plaintiff's ...


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