Illinois Appellate Court Holds That “Fundamental Public Policy” and Lack of Consideration Doom Employment Agreement Restrictive Covenant

In a 2-1 decision, the Illinois Appellate Court, Third District, affirmed summary judgment awarded to an ex-employee in an action brought by the ex-employer to enforce an employment agreement restrictive covenant. Brown & Brown, Inc. v. Mudron, No. 3-06-0908 (Ill. App., 3d Dist., Mar. 11, 2008). The agreement provided that it was to be construed in accordance with Florida law where the ex-employer is incorporated. Even though Section 542.335(g) of the Florida statutes provides expressly that “a court: (1) Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought,” the court ruled that Illinois law was applicable (based on Section 187 of the Restatement (Second) of Conflict of Laws), that the Florida statute “is contrary to Illinois’s fundamental public policy,” and that Illinois law requires consideration of the hardship a restrictive covenant imposes on the ex-employee.

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