Thursday, December 13, 2018

The Meaning of "Not Less Than"

This week, I lost an appeal.

It sucks. It really does. Losing is never fun, and I occasionally take things too personally. The case was an interlocutory appeal, meaning it's not over. Meaning that I appealed early. Meaning that in cases like this sometimes you must swing for the fences. Meaning that trying to hit home runs isgood, even if it means striking out on occasion. (Ask any baseball geek GM; he'll concur).

So the Appellate Court of Illinois' opinion can be found here, but the case was simple in terms of the legal issue presented. It is thus stated as follows:

Does a non-compete that lasts for "not less than" five years mean that it lasts for five years?

That is the issue I appealed under a procedural rule that allows for discretionary interlocutory appeals. Basically you get to ask the appellate court a question and see what they seay. The Third District Appellate Court answered my question and said "yes." I said no. I was wrong. Judges are right when they rule, even if you don't like the result.

I will say that this experience of arguing in the Third District (site of the Lincoln-Douglas debates for you folks who live in lower-taxed States) was fantastic and the appellate justices were highly engaged throughout this argument, not to mention exceedingly likeable. I have appeared here before with success (in another non-compete case, before the same exact panel) and found the court equally engaged then.

I just happen to disagree with what they said. I don't think a covenant lasting "not less than" five years means that it lasts five years, and so the covenant for now at least sets forth some ascertainable time limit, which means that for now I head back to the trial court and attempt to hit singles, doubles, steal bases, and eventually win the game through my typical plodding around.

I am posting this because I felt my side needed to be heard. Links to both of my briefs are embedded here in this post. The court adopted my opponents' arguments in full. So no need to post what he wrote! He is a terrifically nice guy and effective lawyer, and I congratulate him. Well done. But, sorry bruh, I'm not posting your brief!

My opening brief is below

My reply brief follows.

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