Individuals and businesses alike can benefit in the long run by surrounding themselves with a team of bright, highly experienced, hardworking and responsive professionals. This doesn’t necessarily mean you need to hire the attorneys or accountants who charge the most or have been practicing the longest. It means they need to be knowledgeable in their field, adept at finding solutions to problems, available when you need them and good at listening and helping you figure out what you need.

But not only do you want to know you have the best attorney, accountant, insurance agent, investment advisor, real estate broker, etc., working for you, you should also expect them to work together. Only through a coordinated effort with good communication can they provide you with the best possible service. At Golan & Christie, we strive to provide our clients with the highest level of legal services in a variety of practice areas, and to work closely with your other professionals.

You may also have noticed that our firm has grown to over 20 attorneys. We have expanded the firm by strategically adding practice areas that can be of the most benefit to you, the client. If you are buying or selling a company, we can offer advice on tax planning, trademark protection and employment issues. If you need an estate plan, we can also help you with succession planning and asset protection. If in the past you have only used our firm for one type of service, now would be a great time to explore our website or sit down with one of us to learn the other ways we can be of service to you and your business.

-Stephen L. Golan
 Managing Partner

Employment contracts containing “restrictive covenants” (a/k/a non-competition, non-solicitation or any other post-employment restriction on employee’s activities) are one of the most litigated legal issues in Illinois – and around the nation.

Two big developments came out of 2011. Foremost: the Illinois Supreme Court issued a decision in November 2011 which modifies how courts will evaluate the enforceability of restrictive covenants. Also, Illinois appellate courts have eroded the notion of continued employment serving as sufficient consideration for any change to a restrictive covenant.

Under Illinois law and the laws of most other states, restrictive covenants are “restraints on trade” and therefore, need to be carefully drafted to be enforceable. First, the restrictive covenant must be part of an employment relationship and supported by “adequate consideration.” Additionally, the restrictive covenant must be no greater than is required to protect the “legitimate business interests” of the employer.

With respect to whether a “legitimate business interest” is at stake, the Illinois Supreme Court ruled in its November 2011 decision that each covenant must be evaluated individually based on the “totality of the circumstances.” This holding rejected the two-factor test that had been previously used by courts. The Court held that, in evaluating the legitimate business interest at stake, some of the factors to be considered are: (a) whether there is a near-permanent customer relationship; (b) whether the employee gained confidential information about customers; and (c) the extent of the time and place restrictions. “No factor carries any more weight than any other, but rather its importance will depend on the specific facts and circumstances of the individual case.” Reliable Fire Equipment Company v. Arrendendo, 2011 WL 6000743 (2011).

Although the appellate courts and trial courts have not had time to interpret this decision, we believe the bottom line is that there is a bit more room for businesses to establish legitimate business interests, and in that regard the Court’s decision is a boon for businesses with restrictive covenants.

Adequate consideration is another fluctuating standard. While many courts have deemed “continued employment” as adequate consideration, that perspective has eroded considerably in the past few years. In 2011, the Fifth District Appellate Court characterized continued employment as “illusory” and – absent two years or more of continued employment – insufficient to constitute adequate consideration. Given the holdings of this and other recent decisions, new restrictive covenants should be supported by more than continued employment, such as a carefully crafted bonus or other benefit to the employee.

These recent cases highlight the evolving nature of employment law and the necessity of reviewing your company’s employment practices on an annual basis.

It is no secret that since 2007 real estate property values throughout the Chicagoland area have decreased drastically. Market values have plummeted for commercial, industrial and residential properties alike. Nonetheless, property taxes have remained high.

While some County Assessors have made slight reductions to assessments in an attempt to more accurately reflect current market conditions, overall property assessments do not reflect an accurate market value. Faced with the current lag between the Assessors’ indicated property values and actual values determined by the poor market conditions, it is important that all taxpayers seize the opportunity to protest their assessments and achieve tax savings.

For the second straight year, the Property Tax Group at Golan & Christie LLP has achieved over two million dollars ($2,000,000.00) in tax savings for its clients through assessment appeal work. In our appeals we strive to obtain assessment reductions that accurately reflect market conditions at all levels of appeals within Cook, Will, DuPage and Lake Counties. Golan & Christie undertakes assessment appeals for all types of property from commercial and industrial to rental and residential. Our familiarity with the appeal system and strength of evidence required to obtain equitable assessment reductions has translated to a high success rate and large tax reductions for our clients.

A mobile device retailer’s lawsuit against its former employee, Noah Kravitz, raises a novel legal question about who owns a Twitter account used by an employee to comment about both personal and work topics. The employer, PhoneDog Media L.L.C., which also maintains a website and blog with reviews and news about mobile devices, alleges that Kravitz improperly kept using a company Twitter account which had accumulated more than 17,000 followers.

Formerly known as @PhoneDogNoah when he worked for the company, Kravitz has since changed his Twitter name, and now simply goes by @NoahKravitz. PhoneDog’s suit says that, despite leaving the company on good terms in 2010, Kravitz stole the company’s customer list with his Twitter account. Kravitz counters that he was told he could keep the account after leaving his employment, as long as he tweeted about PhoneDog upon occasion. PhoneDog is seeking damages of $2.50 per Twitter follower per month for the months since Kravitz’s employment ended.

This story has attracted significant media attention. Additionally, a new website and Twitter account, @SaveNoah, were created by Kravitz’s supporters in response to the lawsuit. According to www.SaveNoahKravitz.com, PhoneDog’s lawsuit is in retaliation for an earlier lawsuit by Kravitz over unpaid wages owed to him by the company. The site adds that Kravitz was an established blogger before being hired, and started the @PhoneDogNoah Twitter account himself, not per any company agreement. The site claims that if Kravitz loses his legal fight, they will give him the @SaveNoah account to start over, and asks everyone to follow it. On the Save Noah site, followers have posted comments supportive of Kravitz and critical of the company. One supporter encourages others to exile PhoneDog from social media circles because its lawsuit goes against the values of social networking.

PhoneDog provided a statement to the New York Times that “the costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”

As there is no precedent for this type of dispute, both employers and bloggers will be watching the outcome of the case closely. Regardless of who wins, the dispute serves as a good lesson to all employers to clearly document their policies and expectations for their employees’ use of social media.

This newsletter has been provided by Golan & Christie LLP for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not act without seeking professional advice. This newsletter may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome. Effective June 21, 2005, Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the newsletter contains written advice relating to a federal tax issue, the written advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purposes of avoiding federal tax penalties, and was not written to support the promotion or marketing of the transaction or matters discussed herein.

The National Labor Relations Board (NLRB) has again postponed the effective date of its requirement that employers post a notice to employees about their rights under the National Labor Relations Act (NLRA). The NLRA covers most non-governmental employers in the United States, including non-profits and non-union businesses.

The final rule was posted in the Federal Register on August 30, and was set to take effect 75 days later, on November 14, 2011. The effective date was later changed to January 31, 2012. The new implementation date is now April 30, 2012.

The 11-by-17-inch poster tells employees that they have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints. The poster is available at no cost from the NLRB through its website, www.nlrb.gov/poster, which has additional information on posting requirements.

Similar postings are already required under the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, and the Family and Medical Leave Act, among other federal laws. When the posting requirement goes into effect in April 2012, employers should add the NLRB poster to others already displayed in a place that is accessible to all employees.

If you have questions about the posters or any aspect of your company’s employment practices, please contact Laura A. Balson or Margaret A. Gisch.