Fuqua v. SVOX AG
Docket Nos. 1-13-1429, 1-13-1540 cons.
Appellate Court of Illinois, First District, First Division
June 9, 2014
Rehearing denied July 1, 2014
2014 IL App (1st) 131429
Illinois Official Reports
Held: (Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.) The trial court‘s order granting defendants’ motion to stay litigation and compel arbitration of a dispute arising from plaintiff‘s action challenging the termination of his employment was affirmed, notwithstanding his contention that the arbitration clause of his employment contract was procedurally and substantively unconscionable, since the parties bargained over the terms of the clause before it was executed, their relative bargaining power was not vastly unequal, and plaintiff negotiated and requested some of the terms that he later claimed were inequitable.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-L-3607; the Hon. John C. Griffin, Judge, presiding.
Judgment: Affirmed in part; cause remanded with directions.
Littler Mendelson, P.C., of Chicago (John A. Ybarra, Darren M. Mungerson, and Amanda E. Inskeep, of counsel), for appellee SVOX AG, SVOX USA, Inc., and Nuance Communications, Inc.
Konicek & Dillon, P.C., of Geneva (Daniel F. Konicek and Michael J. Corsi, of counsel), for appellee Thomas Soseman.
Panel: JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Delort concurred in the judgment and opinion.
OPINION
¶ 1 This interlocutory appeal arises from a March 7, 2013 order entered by the circuit court of Cook County which granted the motion to stay litigation and compel arbitration and the motion to lift the stay of arbitration filed by defendants-appellees SVOX AG, SVOX USA, Inc. (SVOX USA), and Nuance Communications, Inc. (Nuance) (collectively, the SVOX defendants); and granted the motion to dismiss filed by defendant-appellee Thomas Soseman (Soseman). This appeal also arises from a May 7, 2013 order which denied the motion for reconsideration filed by plaintiff-appellant Kurt Fuqua (Fuqua). On appeal, Fuqua argues that: (1) the circuit court erred in granting the SVOX defendants’ motion to lift the stay of arbitration; (2) the circuit court erred in granting the SVOX defendants’ motion to stay litigation and compel arbitration; and (3) the circuit court erred in granting Soseman‘s motion to dismiss. For the following reasons, we affirm in part and reverse in part the judgment of the circuit court of Cook County.
¶ 2 BACKGROUND
¶ 3 The facts of this case are lengthy and complex. In the interest of clarity, we present only the facts that are pertinent to our resolution of the case. Fuqua is a computational linguist who has created numerous inventions in the field of computational linguistics. SVOX USA is a whоlly owned subsidiary of SVOX AG, a foreign corporation.1 At the time of the dispute between the parties, SVOX USA was a Delaware corporation located and doing business in Illinois. SVOX USA is a technology services company that researches and develops
“16. Arbitration. Any dispute or controversy arising under or in connection with this Agreement or any other dispute concerning [Fuqua‘s] employment with [SVOX USA] *** shall be settled exclusively by arbitration, conducted before a single, mutually agreed upon arbitrator or, if no such single arbitrator can be mutually agreed upon, then before a panel of three arbitrators (with one arbitrator to be chosen by each party and the third arbitrator to be chosen by agreement of the first two), sitting in a location selected by mutual agreement within the City of Chicago, Illinois in accordance with the rules for commercial arbitration of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator‘s award in any court having jurisdiction. Notwithstanding the agreement to arbitrate such disputes and controversies, Either party shall be entitled to enforce, in any court of competent jurisdiction, Fuqua‘s compliance with any restrictive covenant or confidentiality provision contained in this Agreement to the fullest extent permitted by law by seeking any remedy available at law or in equity, including but not limited to a temporary restraining order, injunction, and spеcific performance, without having to arbitrate and without need to post a bond to do so.” (Emphasis added.)
Notably, Fuqua requested that the phrase “Either party” be included in the arbitration clause as a replacement for the term “Employer” in order to make the restrictive covenant provision “symmetric.”
¶ 4 On February 1, 2009, Fuqua began his employment as vice president-professional services for SVOX USA. In October 2009, SVOX USA decided to terminate Fuqua‘s employment and he was given 90 days’ notice of his termination. On December 8, 2009, Fuqua filed a demand for arbitration with the American Arbitration Association (AAA), alleging, among other things, breach of contract and unauthorized withholding of wages. On January 3, 2010, Fuqua filed a second demand for arbitration with a claim amount of $10,000 alleging breach of contract and seeking payment of funds owed. Both arbitration demands were filed in accordance with the rulеs under the “Employment: Promulgated Plans” (employment rules) of the AAA. On February 10, 2010, SVOX USA filed a complaint for injunctive relief in the circuit court of Cook County against Fuqua. The complaint alleged that Fuqua refused to return SVOX computer equipment and software, which contained confidential and proprietary information. On February 11, 2010, SVOX USA‘s complaint was voluntarily dismissed. SVOX USA then refiled its complaint in the circuit court of Lake County. On March 18, 2010, SVOX USA‘s Lake County complaint was voluntarily dismissed. The AAA then consolidated Fuqua‘s arbitration demands.
¶ 5 On April 6, 2010, SVOX USA filed an answer and counterclaims to Fuqua‘s arbitration demand. SVOX USA also filed a motion requesting that the AAA determine whether the employment rules or the commercial arbitration rules (commercial rules) apply to the arbitration between the parties. On July 7, 2010, AAA Arbitrator Timothy Klenk (Arbitrator Klenk) issued an order which determined that the commercial rules would apply to the arbitration between the parties. Applying the AAA rules, Arbitrator Klenk found that
¶ 6 On or around August 9, 2011, Fuqua filed a complaint in the United States District Court for the Northern District of Illinois against the SVOX defendants, Soseman, Volker Jantzen (Jantzen), Eugen Stermetz (Stermetz), Martin Reber (Reber), and Eric Lehmann (Lehmann) (collectively, the defendants). On March 12, 2012, the district court ruled on Fuqua‘s complaint in a memorandum opinion and order. The district court noted that Fuqua‘s complaint alleged violations of the American Reinvestment and Recovery Act of 2009 (ARRA) and violations of state law. The district court also noted that the defendants filed a motion to dismiss Fuqua‘s complaint. The district court dismissed Fuqua‘s ARRA claim with prejudice. Because the district court dismissed the only federal law claim in the complaint, the court declined to exercise supplemental jurisdiction оver Fuqua‘s state law claims and the state law claims were stricken without prejudice to be refiled in state court.
¶ 7 On April 4, 2012, Fuqua filed a complaint in the circuit court of Cook County against the defendants. Fuqua‘s complaint alleged breach of contract, retaliatory discharge, and violations of the Illinois Wage Payment and Collection Act (
¶ 8 Instead of filing an answer to Fuqua‘s motion to stay arbitration, on April 25, 2012, the defendants filed a notice of removal to the United States District Court for the Northern District of Illinois, on the basis of diversity jurisdiction. Additionally, on April 25, 2012, the defendants’ notice of removal to federal court was filed in the circuit court of Cook County. Todd Church (Church), counsel for the SVOX defendants, executed a signed declaration (Church declaration) which statеd that a “notice to adverse party of notice of removal” was hand-delivered to Fuqua‘s counsel by Velocity Courier on April 25, 2012. According to the Church declaration, the delivery tracking log of Velocity Courier shows that the notice to adverse party was delivered at 3:46 p.m. on April 25, 2012. On that same day, counsel for the SVOX defendants sent a letter to the presiding judge in the Cook County case informing him of the removal to federal court. The letter notes that Fuqua‘s counsel was copied. However, the record contains affidavits executed by Fuqua and Fuqua‘s counsel which state that they were not served with the notice to adverse party on April 25, 2012, as the letter from the
¶ 9 On April 26, 2012, the circuit court granted Fuqua‘s motion to stay arbitration. In the circuit court‘s order, it stated “[d]efendant‘s [sic] notiсe of removal has not been stamped by the clerk of the Northern District of Illinois and this court continues to retain jurisdiction.” Litigation then proceeded in the Northern District of Illinois. On August 22, 2012, the district court ruled on a motion filed by Fuqua to remand the case to state court. The district court found that it did not have diversity jurisdiction over the matter because Soseman and Fuqua were both residents of Illinois. Because diversity was the only jurisdictional basis on which the defendants removed the matter to federal court, the district court remanded the remainder of Fuqua‘s claims to state court.
¶ 10 On September 20, 2012, Fuqua filed an amended complaint in the circuit court of Cook County alleging similar claims as his original circuit court complaint. On October 18, 2012, the SVOX defendants filed a motion to stay litigation and compel arbitration, and a motion to lift the stay of arbitration that was ordered on April 26, 2012. On January 10, 2013, Fuqua filed а combined response to the SVOX defendants’ motions. On January 24, 2013, the SVOX defendants filed a reply in support of their motion to lift the stay of arbitration. On February 27, 2013, Fuqua filed a surresponse to the SVOX defendants’ motions.
¶ 11 On March 7, 2013, the circuit court granted the SVOX defendants’ motion to lift the stay of arbitration and motion to stay litigation and compel arbitration. Additionally, the circuit court granted Soseman‘s motion to dismiss with prejudice. Initially, the circuit court found that its April 26, 2012 order, which granted the stay of arbitration, was entered improperly and without jurisdiction. The circuit court found that the defendants’ notice of removal divested the court of jurisdiction and it was unable to enter the April 26, 2012 order that it purportedly entered. The court noted that on April 25, 2012, the Northern District of Illinois assigned a case number to the notice of removal and that the defendants hand-delivered to Fuqua the notice to adverse pаrty of notice of removal. As such, the circuit court found that the April 25, 2012 notice of removal divested the court of jurisdiction. Also, the circuit court stated that it would not consider the arguments in Fuqua‘s surresponse because he did not seek leave to file the surresponse. Further, the circuit court found that the arbitration clause was enforceable because it was not procedurally or substantively unconscionable. Additionally, the circuit court found that the defendants did not waive their right to arbitrate and that the claims against Soseman must be dismissed because Soseman is afforded a qualified privilege as an attorney for the defendants.
¶ 12 On April 5, 2013, Fuqua filed a notice of appeal of the circuit court‘s March 7, 2013 order. On that same day, he filed a motion for reconsideration of the circuit court‘s March 7, 2013 order. On April 24, 2013, the circuit court held a hearing on Fuqua‘s motion for reconsideration. At the hearing, the circuit court asked Fuqua‘s counsel about the notice of
¶ 13 ANALYSIS
¶ 14 As a preliminary matter, we must determine whether we have jurisdiction to consider Fuqua‘s appeals. Rule 307(a)(1) states that an appeal may be taken to this court from an interlocutory order that grants, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction.
“Rule 307(a)(1) permits interlocutory appeals from four types of orders: (1) orders that deny (i.e., refuse) injunctions; (2) orders that create (i.e., grant) injunctions; (3) orders that change the effects of (i.e., modify or dissolve) existing injunctions; and (4) orders that perpetuate the effects of (i.e., refuse to modify or to dissolve) existing injunctions. [Citation.]” Id.
¶ 15 In this case, the circuit court‘s Marсh 7, 2013 order was an injunctive order because, among other things, it granted the SVOX defendants’ motion to stay litigation and compel arbitration. The circuit court‘s May 7, 2013 order refused to modify an existing injunction by denying Fuqua‘s motion for reconsideration of the March 7, 2013 order. Thus, both orders are appealable under Rule 307(a)(1). Further, “ ‘[t]he sole issue before the appellate court on an interlocutory appeal [of this type of order] is whether a sufficient showing was made to sustain the order of the trial court denying the motion to compel arbitration.’ ” Menard County Housing Authority v. Johnco Construction, Inc., 341 Ill. App. 3d 460, 463 (2003) (quoting Yandell v. Church Mutual Insurance Co., 274 Ill. App. 3d 828, 830-31 (1995)). Accordingly, this court applies the abuse of discretion standard of review in evaluating this appeal. Menard, 341 Ill. App. 3d at 463.
¶ 16 We note that the SVOX defendants3 argue that this court does not have jurisdiction to consider Fuqua‘s appeals because Fuqua did not timely comply with the requirements of filing an appeal as mandated by Rule 307. Specifically, the SVOX defendants highlight that at the hearing on the motion for reconsideration, Fuqua‘s counsel stated that the April 5,
¶ 17 We next determine whether the circuit court erred in granting the SVOX defendants’ motion to lift the stay of arbitration.
¶ 18 On April 25, 2012, the defendants once again filed a notice of removal in order to remove the case from the circuit court to the federal district court. On April 26, 2012, the circuit court granted Fuqua‘s motion to stay arbitration. The circuit court also found that “[d]efendant‘s [sic] notice of removal has not been stamped by the clerk of the Northern District of Illinois and this court continues to retain jurisdiction.” In its March 7, 2013 order, the circuit court granted the SVOX defendants’ motion to lift the stay of arbitration, effectively overruling its April 26, 2012 order, because the court found that it did not have jurisdiction when it entered its April 26, 2012 order. The circuit court found that the defendants’ April 25, 2012 notice of removal divested the circuit court of jurisdiction and it should not have entered the April 26, 2012 order.
¶ 19 On appeal, Fuqua argues that the circuit court‘s March 7, 2013 order, which granted the SVOX defendants’ motion to lift the stay of arbitration and motion to stay litigation and compel arbitration, was in error. He contends that the court did have jurisdiction to enter its April 26, 2012 order. Fuqua asserts that the circuit court is not divested of jurisdiction until removal is perfected, regardless of when the notice of removal was filed. Fuqua contends that as of April 26, 2012, the defendants had not yet perfected their removal because they had not complied with all the requirements set forth in
¶ 20 In response, the SVOX defendants argue that the circuit court‘s March 7, 2013 order was proper, and that the court properly granted their motion to lift the stay of arbitration. Specifically, the SVOX defendants argue that the circuit court was correct in finding that it did not have jurisdiction to enter its April 26, 2012 order. The SVOX defendants point out that
¶ 21 The resolution of this issue hinges on whether the circuit court had jurisdiction to enter its April 26, 2012 order. In order to answer this question, we must determine whether the defendants perfected their notice of removal before the circuit court entered its April 26, 2012 order. The removal procedure is governed by
“(d) *** Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”
28 U.S.C. § 1446(d) (2006) .
¶ 22 “When a petition for removal has been filed in Federal district court and other requirements of [section 1446(d)] have been met, the State court loses jurisdiction to proceed further until the case is remanded.” (Emphasis added.) Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 154 (1992) (citing Eastern v. Canty, 75 Ill. 2d 566, 571 (1979)).
¶ 23 We note that there is little Illinois authority addressing whether removal is perfected in a situation similar to the one in this case. In this case, the circuit court entered an order after the notice of removal was filed, but it is unclear from the record whether Fuqua was given written notice of the removal before the circuit court entered its order. As Fuqua points out, our supreme court has held:
“Under [section 1446(d)] the filing of a petition for removal must be followed promptly by written notice to all adverse parties and the filing of a copy of the petition in the State court. As noted previously, no question can be raised here as to the latter requirement. With respect to the requirement of prompt written notice to the plaintiff, however, the petition for removal does not allege, nor does the record show, the giving of such notice, and language in [citation], and other decisions suggest[ ] that, like failure to file a copy of the petition in State court, lack of prompt notice to adverse parties also amounts to a failure to perfect removal. [Citations.]” Eastern, 75 Ill. 2d at 571-72.
¶ 24 Thus, pursuant to Eastern, if written notice of the removal is not given to the adverse party then the removal is not perfected. Accоrdingly, if the defendants in this case did not provide written notice of the removal to Fuqua before the circuit court entered its April 26, 2012 order, then the removal was not perfected and the circuit court was not divested of jurisdiction.
¶ 25 We find further support for this analysis in the decisions of federal district courts. Federal courts across several districts have analyzed similar situations in which it is unclear whether the written notice requirement of
¶ 26 In this case, we have competing affidavits and declarations regarding whether the defendants provided written notice of the removal to Fuqua before the circuit court enterеd its April 26, 2012 order. The Church declaration states that Velocity Courier hand-delivered the notice to adverse party to Fuqua‘s counsel on April 25, 2012. The affidavits executed by Fuqua‘s counsel state that the notice to adverse party was not received until after the circuit court entered its April 26, 2012 order. There is nothing in the record from Velocity Courier stating to whom the notice of adverse party was delivered, or where the notice to adverse party was placed upon delivery. Based on the information before this court, Velocity Courier could have handed the notice to adverse party to the wrong person, placed it in the mail room among other mail, or taken any number of actions that would have delayed the notice reaching Fuqua‘s counsel. Taking the affidavits and declaration at face value, it seems that Church made a good-faith effort to provide Fuqua‘s counsel with written notice of the removal, but that the delivery of the written notice was not accomplished until after the circuit court entered its order on April 26, 2012.
¶ 27 Based on the unique facts of this case, Church‘s good-faith effort in providing Fuqua with written notice of the removal was not enough to perfect the removal. This is because Fuqua certainly suffered prejudice as a result of Church‘s failed attempt. As noted above, in its March 7, 2013 order, the circuit court found that the notice of removal divested the court of jurisdiction and that the court improperly entered its April 26, 2012 order, which granted Fuqua‘s motion to stay arbitration. Thus, in its March 7, 2013 order, the circuit court effectively overruled the order that granted Fuqua‘s earlier motion. This is certainly prejudicial to Fuqua. The circuit court was incorrect in finding that the defendants perfected their removal and complied with all the requirements of
¶ 28 Although we reverse a portion of the circuit court‘s March 7, 2013 order, that reversal does not invalidate the remainder of the circuit court‘s order of that date. Indeed, we may affirm the circuit court‘s judgment on any basis supрorted by the record, regardless of the circuit court‘s reasoning. In re Marriage of Petrik, 2012 IL App (2d) 110495, ¶ 33; Christian v. Lincoln Automotive Co., 403 Ill. App. 3d 1038, 1044 (2010); Heinz v. County of McHenry, 122 Ill. App. 3d 895, 898 (1984). Thus, we examine the other issues in this case in totality in determining whether the circuit court erred in granting the SVOX defendants’ motion to stay litigation and compel arbitration.
¶ 30 Fuqua next argues that the circuit court erred in granting the SVOX defendants’ motion to stay litigation and compel arbitration because the arbitration clause in the employment agreement is unenforceable. Fuqua contends that the arbitration clause is unenforceable because it is procedurally and substantively unconscionable. Fuqua presents many reasons as to why the arbitration clause is procedurally and substantively unconscionable. First, Fuqua argues that it would be extremely expensive for him to pursue arbitration. He claims that he has already been billed $16,469.25 and will be required to advance at least $23,619.25 to arbitrate. Fuqua claims that after he was terminated, he was not employable in his field due to the noncompete clause in the employment agreement, and thus is unable to afford the costs of arbitration. Also, Fuqua argues that the arbitration clause is unconscionable because of the carve-out provision that works solely against him. Specifically, Fuqua highlights the provision in the arbitration clause that states, “[e]ither party shall be entitled to enforce, in any court of сompetent jurisdiction, [Fuqua‘s] compliance with any restrictive covenant or confidentiality provision contained in this Agreement *** without having to arbitrate.” (Emphasis added.) Fuqua argues that the carve-out provision is an illusory promise because there is no legitimate reason for him to seek to enforce his own compliance with the noncompetition and confidentiality provisions. Also, Fuqua claims that the parties agreed to arbitrate all claims, but the carve-out provision allows SVOX USA to enforce the noncompetition and confidentiality provisions in court. Fuqua argues that this shows a lack of mutuality between the parties. As such, Fuqua asserts that the carve-out provision makes the arbitration clause unconscionable.
¶ 31 Additionally, Fuqua argues that the application of the AAA‘s commercial rules to the arbitration renders the arbitration clause unсonscionable. Fuqua points out that he originally filed a request for arbitration under the employment rules, which allocate fees and costs differently than the commercial rules. However, in response to a motion filed by SVOX USA, Arbitrator Klenk ruled that the commercial rules would apply to the arbitration. Fuqua claims that the commercial rules are designed for arbitration of disputes between businesses, not for claims arising out of employment agreements. Also, he claims that the arbitration clause does not highlight the applicability of the commercial rules. Fuqua contends that he
¶ 32 In response, the SVOX defendants argue that in its March 7, 2013 order, the circuit court properly granted their motion to stay litigation and compel arbitration. The SVOX defendants argue that the arbitration clause in the employment agreement is valid and enforceable under the Uniform Arbitration Act and the Federal Arbitration Act (
¶ 33 Additionally, the SVOX defendants argue that the arbitration clause is not procedurally or substantively unconscionable. The SVOX defendants contend that under Illinois law, procedural unconscionability is based on impropriety during the process of forming the contract. Thus, the SVOX defendants assert that this court should evaluate the issue of procedural unconscionability based only on the parties’ conduct when the employment agreement was being negotiated and executed. Further, the SVOX defendants argue that the arbitration clause was not difficult to find, read, or comprehend, and that Fuqua had an opportunity to negotiate terms of the arbitration clause and employment agreement. As such, the SVOX defendants contend that there was not vastly unequal bargaining power between SVOX USA and Fuqua. Also, the SVOX defendants assert that Arbitrator Klenk‘s application of the commercial rules does not render the arbitration clause unconscionable because Arbitrator Klenk made that determination after carefully considering the entire employment agreement and the AAA rules. Therefore, the SVOX defendants argue that the arbitration clause is not procedurally unconscionable.
¶ 34 Moreover, the SVOX defendants argue that the arbitration clause is not substantively unconscionable. The SVOX defendants assert that substantive unconscionability is based on whether the terms of a contract are so one-sided as to render the contract unconscionable. The SVOX defendants claim that a majority of Fuqua‘s argument is based on the fairness of applying the commercial rules to the arbitration clause. However, the SVOX defendants contend that it is not the proper function of the appellate court to review Arbitrator Klenk‘s interlocutory arbitration order. Also, the SVOX defendants argue that the terms of the arbitration clause were not unfair. The SVOX defendants point out that before making his determination, Arbitrator Klenk gave Fuqua multiple opportunities to present evidence of
¶ 35 The Uniform Arbitration Act is applicable to this case. The Uniform Arbitration Act states as follows:
“§ 1. Validity of arbitration agreement. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract ***.”
710 ILCS 5/1 (West 2008) .
It is well established that arbitration agreements are evaluated under the same standards as any other contract. Melena v. Anheuser-Busch, Inc., 219 Ill. 2d 135, 149-50 (2006). The elements of an enforceable contract include offer, acceptance and consideration. All American Roofing, Inc. v. Zurich American Insurance Co., 404 Ill. App. 3d 438, 449 (2010). Consideration is a bargained-for exchange where one party receives a benefit or the other party suffers a detriment. Id.
¶ 36 The court decides as a matter of law whether a contract clause is unconscionable. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 99 (2006). “Unconscionability can be either ‘procedural’ or ‘substantive’ or a combination of both.” Id. Procedural unconscionability occurs when a term is so difficult to find, read, or understand that it cannot be fairly said that the plaintiff was aware that he was agreeing to the term. Id. at 100. In determining whether a term is procedurally unconscionable, the court considers a lack of bargaining power. Id. Substantive unconscionability occurs when terms are inordinately one-sided in one party‘s favor. Id. “ ‘Substantive unconscionability concerns the actual terms of the contract and examines the relative fairness of the obligations assumed.’ ” Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 28 (2006) (quoting Maxwell v. Fidelity Financial Services, Inc., 907 P.2d 51, 58 (Ariz. 1995)).
¶ 37 We find that the SVOX defendants have the more reasonable argument and interpretation of applicable legal principles. Thus, pursuant to
¶ 38 In this case, the arbitration clause was not procedurally unconscionable because it was easy to find within the employment agreement, and it was clear and easy to understand. Fuqua claims that he was unaware that the commercial rules could apply and that he only anticipated arbitration under the employment rules. However, the arbitration clause makes no
¶ 39 Likewise, the arbitration clause is not substantively unconscionable. The crux of Fuqua‘s unconscionability argument is that the cost of arbitration under the commercial rules is financially burdensome, and thus he cannot afford to pursue arbitration. We acknowledge that the allocation of costs between the parties under the commercial rules puts a relatively greater burden on Fuqua than would occur under the application of the employment rules. However, in Arbitrator Klenk‘s lengthy order, he outlined his reasoning for his ruling. We can find no fault with his reasoning or his ruling. Further, he gave Fuqua an opportunity to present evidence to support his argument of undue financial hardship and Fuqua did not avail himself of the opportunity to do so. It is not this court‘s prerogative to review Arbitrator Klenk‘s order in the manner requested by Fuqua. Even if it were, we would have no reason to depart from Arbitrator Klenk‘s findings. Although Fuqua repeatedly states that it will be expensive for him to pursue arbitration, there is nothing in the record that reflects his financial situation, or supports his argument on that issue.
¶ 40 Similarly, the carve-out provision in the arbitration clause does not render the arbitration clause substantively unconscionable. Fuqua argues that the carve-out provision is unfair and lacks mutuality because he would have no reason to enforce restrictive covenants against himself. However, Fuqua fails to acknowledge that he negotiated and requested some of the very terms in the carve-out provision of which he now complains. Indeed, Fuqua requested that the phrase “Either party” be included in the arbitration clause as a replacement for the term “Employer” in order to make the restrictive covenant provision “symmetric.” Accordingly, it can be inferred that Fuqua had ample opportunity to object to the carve-out provision and request changes to the terms. His argument when carefully analyzed shows that he successfully negotiated the contract clause that he is now arguing is unfair to him. Thus, the arbitration clause is not substantively unconscionable. Because the arbitration clause is not procedurally or substantively unconscionable, there are no grounds to revoke the valid
¶ 41 We note that Fuqua also argues that, in its March 7, 2013 order, the circuit court erred in dismissing the complaint claims against Soseman with prejudice. However, as Soseman points out on appeal, the circuit court dismissed the claims against him based on the rule that an attorney is entitled to qualified immunity for actions taken by a client pursuant to the attorney‘s advice unless the plaintiff can set forth facts showing actual malice by the attorney. Schott v. Glover, 109 Ill. App. 3d 230, 235 (1982). In this case, Fuqua did not allege any facts showing actual malice by Soseman and presented no arguments that overcome an attorney‘s qualified immunity privilege. Therefore, the circuit court did not abuse its discretion in dismissing the claims against Soseman with prejudice.4 Accordingly, we affirm the circuit court‘s order of March 7, 2013 that dismissed the claims against Soseman with prejudice.
¶ 42 For the foregoing reasons, we affirm the circuit court‘s March 7, 2013 judgment that granted the SVOX defendants’ motion to stay litigation and compel arbitration. We affirm the circuit court‘s March 7, 2013 judgment that dismissed the claims against Soseman with prejudice. We affirm the circuit court‘s March 7, 2013 judgment that granted the SVOX defendants’ motion to lift the stay of arbitration. We affirm the circuit court‘s May 7, 2013 judgment that denied Fuqua‘s motion to reconsider the court‘s grant of the SVOX defendants’ motion to lift the stay of arbitration. The matter is remanded with directions to compel arbitration.
¶ 43 Affirmed in part; cause remanded with directions.