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Impact | Understanding and Managing Business Risk


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By Kara Cenar on May 12, 2016 at 3:34 PM

The emerging market of 3D printing is primed for trade secrets and the disputes over who “owns” these trade secrets. Shared ideas, broken business deals, and employee mobility fuels most of these disputes. The Defend Trade Secrets Act (DTSA), a newly enacted federal trade secret act, defines the term “owner” as “the person or entity in whom or in which rightful legal or equitable title to, or license in, the trade secret is reposed.”

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By Patrick Cotter on April 19, 2016 at 1:24 PM

More Troops, Big Data and Watch Out, Corporations!

To be forewarned is to be forearmed. That ancient observation is especially true for those attorneys and health care providers who must deal with the massive power and breadth of the law enforcement arm of the United States government, the Department of Justice.

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By David Goodman on April 6, 2016

Forming contracts by “clicking through” documents on the Internet is a fixture in the transaction of business today. However, as recently recognized in Sgouros v. TransUnion, a late March 2016 Seventh Circuit decision, despite the ubiquity of contracting online, “the law governing the formation of contracts on the Internet is still in the early stages of development.”

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By Thadford Felton on March 22, 2016 at 10:51 AM

In Deere Employees Credit Union v. Smith, an Illinois court recently refused to enforce a restrictive covenant in an employment agreement, finding that it was overly broad. Reference to the terms of that agreement and the court’s finding offer reminders of traps to be mindful of in drafting restrictive covenants, as well as in evaluating restrictions and exposure presented by potential new hires. 

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By David Goodman on March 16, 2016 at 2:10 PM

The “bright line” rule for the adequacy of non-compete agreements in Illinois first announced in Fifield v. Premier Dealer Servs., Inc., just became a bit hazier for parties evaluating the enforceability of their restrictive covenants.

Last week, a federal district court judge applying Illinois law declined to void a non-compete agreement on the basis that the at-will employment relationship that was the consideration for the restrictive covenant lasted less than two years. Adopting the reasoning of three of the four federal court judges in the Northern District of Illinois that have addressed the issue, the court, in R.J. O’Brien & Associates v. Williamson,1 concluded that the Illinois Supreme Court would reject a two-year bright line rule for the adequacy of consideration required for a non-compete agreement to be enforceable.

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By David Goodman on March 11, 2016 at 8:36 AM

Belt and suspendersArbitration agreement is unenforceable where a party retains the right to make unilateral modifications effective upon notice to the other party.

“You can’t always get what you want … but if you try sometimes, you just might find you get what you need.” This wisdom, courtesy of The Rolling Stones, is good advice when drafting contracts as part of an enterprise risk management strategy. 

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By Courtney Adair on March 2, 2016 at 10:57 AM

employers need to act quickly A recent decision from the Illinois Appellate Court for the First District reminds employers of the need to act quickly and thoroughly in investigating potential breaches of employee restrictive covenants and in taking actions to enforce their rights under those agreements.

In Bridgeview Bank Group v. Meyer, 2016 IL App (1st) 160042, the court affirmed the trial court’s denial of an employer’s petition for a temporary restraining order against a former employee. Bridgeview Bank had employed Thomas Meyer as a senior vice president. The bank entered into an employment agreement incorporating non-compete, non-solicitation and non-disclosure provisions at the beginning of the employment relationship. 

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By David Goodman on February 23, 2016 at 3:35 PM

Thirty years ago, recognizing that comprehensive general liability (CGL) insurance policies were “tailor made” to provide coverage for most pollution-related injuries, insurers added an exclusion to CGL policies in an attempt to avoid coverage for such claims.1

Depending on how the pollution exclusion is read, its breadth may effectively render the insurance coverage under CGL policies illusory. In 1997, the Illinois Supreme Court first construed the standard pollution exclusion and found that its reach is limited to “traditional environmental contamination.” However, the Illinois Supreme Court left the question of what constitutes “traditional environmental contamination” to future courts for determination on a case-specific basis. 

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By Elizabeth Austermuehle on February 18, 2016 at 2:13 PM

GPS TrackingWith the rise in GPS technology, employers have unprecedented access to their employees’ whereabouts. For several years, employers have been able to track their field or mobile employees’ locations through GPS devices in vehicles. With more recent technology, employers are able to track locations through GPS apps in employees’ smartphones. But tracking presents risks employers need to understand so they can evaluate whether the potential benefits outweigh the significant risks.

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By Courtney Adair on February 12, 2016 at 1:45 PM

The Department of Labor’s new guidance about what constitutes a “joint employer” should cause businesses that use staffing agencies or other indirect “employment” structures or relationships to carefully review these arrangements.

Specifically, on Jan. 20, 2016, in a departure from what had been somewhat settled, the DOL issued guidance interpreting “joint employer” expansively, making clear that a business may be held liable for Fair Labor Standards Act (FLSA) and Migrant & Seasonal Agricultural Worker Protection Act (MSPA) violations committed by a “joint employer.”

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