Stenstrom Petroleum Services Group, Inc. v. Mesch

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-07-0504 Rel

Case Date: 09/07/2007

Preview:No. 2--07--0504

Filed: 9-7-07

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

STENSTROM PETROLEUM SERVICES GROUP, INC., Plaintiff-Appellant and Cross-Appellee, v. ROBERT MESCH, Defendant-Appellee and Cross-Appellant (Precision Petroleum Installation, Inc., Defendant-Appellee).

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Appeal from the Circuit Court of Winnebago County.

No. 07--CH--366

Honorable Ronald L. Pirrello, Judge, Presiding.

JUSTICE CALLUM delivered the opinion of the court: I. INTRODUCTION Plaintiff, Stenstrom Petroleum Services Group, Inc., sued defendants, Robert Mesch (its former employee) and Precision Petroleum Installation, Inc. (New PPI) (Mesch's current employer), alleging, inter alia, breach of a covenant not to compete, violations of the Illinois Trade Secrets Act (Trade Secrets Act or Act) (765 ILCS 1065/1 et seq. (West 2006)), and breach of fiduciary duty. Stenstrom sought an injunction and damages. The trial court granted Stenstrom a preliminary injunction to enforce the covenant not to compete and denied relief on the other grounds alleged in its complaint. Stenstrom appeals, arguing that the trial court erred in determining the

No. 2--07--0504 commencement date of the preliminary injunction and in declining to enjoin Mesch and New PPI for breach of fiduciary duty and violations of the Act. Mesch cross-appeals, arguing that the covenant not to compete is unenforceable. We affirm. II. BACKGROUND Stenstrom filed its complaint on March 7, 2007. The trial court entered a temporary restraining order (TRO) on March 8, 2007. The court heard testimony on Stenstrom's petition for a preliminary injunction on March 16 and April 3, 2007. It entered the preliminary injunction on April 25, 2007. The following testimony was presented at the hearing on the preliminary injunction. A. Mesch Mesch began working in the petroleum industry in 1974, installing equipment such as underground storage tanks and petroleum piping systems. For subsequent employers, Mesch rebuilt damaged gasoline dispensers and pumps, maintained and repaired service station equipment, and worked as a warehouse manager and a purchasing manager. Mesch also performed outside sales and, starting in 1986, engaged in estimating and project management. Stenstrom installs and maintains equipment in the petroleum industry, including the installation and removal of petroleum tanks, pumps, and electronics. It also repairs such equipment. A separate Stenstrom company performs excavation work. On June 18, 2003, Stenstrom purchased Precision Petroleum, Inc. (Old PPI). Mesch had worked for Old PPI for about seven years. On the same day that it purchased Old PPI, Stenstrom hired Mesch, who signed a noncompete agreement and a confidentiality agreement. Mesch performed the same work for Stenstrom that he had for Old PPI, working as an estimator and project manager.

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No. 2--07--0504 The noncompete agreement, or restrictive covenant, Mesch signed appears in a document entitled "Petroleum Services Group Training Agreement," at paragraph 3. The covenant provides: "RESTRICTIVE COVENANT. Employee, as additional consideration for the training, classroom study and materials provided by the Company, shall not for a period of six (6) months from the date of termination of his employment with the Company, engage directly or indirectly in any capacity in the excavation or equipment repair field in the counties of Winnebago and Boone (which constitute the Company's trade area or areas), except with Company's written consent. In addition to any other rights or remedies available to the Company for breach of this Agreement, the Company shall be entitled to enforcement by preliminary restraining order and injunction. In the event the Company is forced to take legal action against Employee under this Agreement, all of the Company's costs and expenses of such action, including reasonable [attorney] fees, shall be paid by Employee." (Emphasis added.) Mesch worked for Stenstrom between June 2003 and December 2006. He estimated petroleum jobs, bid on the jobs, and managed successful bids. During his tenure with Stenstrom, Mesch bid on 378 jobs and managed 121 jobs. He acknowledged that, while at Stenstrom, he received training in the Timberline and Excel computer programs. The Timberline database limits employees' access to only those folders that they are granted permission to use. Mesch stated that he merely "dabbled" in using the program. He denied using Timberline to prepare bids in December 2006. He did access it, however, to retrieve job costs and reports.

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No. 2--07--0504 In calculating his bids, Mesch used an Excel spreadsheet and not the Timberline estimating program that other Stenstrom project managers used. Addressing the Excel spreadsheet, Mesch explained that it was first developed by someone at Old PPI. It began as a "crude spreadsheet, which was just quantities, list prices, some discounts, and the way the owner of the company put it, he wanted something that was better than just doing a bid off a napkin." Mesch continued to use the spreadsheet in estimating projects, with "great revisions and modifications" that he incorporated into it. Mesch described his spreadsheet calculations as follows. The material and labor worksheet contains part numbers, quantities, list prices, discounts off of list prices, and extended pricing. The spreadsheet also contains markups to net prices. Mesch manually entered quantities, subcontractor bids, labor hours, and markup percentages. The "bid" tab incorporates the material and labor data. Mesch manually revised entries concerning the scope of the work. On December 22, 2006, Mesch resigned from his job with Stenstrom. He last worked for Stenstrom on December 26, 2006. His salary at that time was $73,840. Mesch started copying Stenstrom files in early-to-mid 2006 for the purpose of working at home on Stenstrom's behalf. From this period through his termination date, he did not use any of the copied materials to prepare bids for any entity other than Stenstrom. After he left Stenstrom, Mesch commenced working for a newly formed entity--New PPI. Mesch testified that all of New PPI's customers are also Stenstrom customers and that New PPI has bid on jobs only for Stenstrom customers. He also stated that New PPI has discussed bids only with Stenstrom customers. New PPI's logo is similar to Old PPI's logo. Mesch conceded that he referenced a computer file of the Old PPI logo, which he copied from Stenstrom, in order to create

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No. 2--07--0504 the New PPI logo. Mesch agreed that he currently has an unwritten agreement with New PPI under which he will receive 20% of its net profits in addition to his salary. His job title is project manager/ estimator. Mesch denied that he is an officer, director, or shareholder of New PPI. Mesch explained that New PPI purchases its equipment from a distributor. Stenstrom, however, purchases directly from manufacturers. According to Mesch, New PPI does not obtain the same prices from manufacturers as does Stenstrom. Stenstrom receives much deeper discounts than New PPI because it does not go through a distributor, which takes a markup. To calculate bids at New PPI, Mesch obtained a list of manufacturer discounts from Source North America and incorporated the data into the Excel spreadsheet, thus changing the discounts. Mesch stated that New PPI, unlike Stenstrom, does not perform any excavation work or equipment repair work. It relies instead on subcontractors. Mesch testified that Stenstrom does the majority of its own concrete work and excavation work. As to electrical contractors, Mesch has used at New PPI contractors that he used at Stenstrom and previously at Old PPI. According to Mesch, in September 2006, he copied a subdirectory entitled "Estimating" from Stenstrom's server onto his personal Dell Jukebox, a music player. He testified that he did so with his supervisor's knowledge. The directory contained folders that, in turn, contained subfolders for various jobs. Mesch testified that not all of the jobs involved clients, but included entities for which Stenstrom had prepared unsuccessful bids. In addition to the music player, Mesch conceded that he copied Stenstrom information onto a travel drive on December 1, 2006. Mesch copied the files from the music player and travel drive to his home computer and then onto two DVDs. He copied the information for the purpose of using it for New PPI and conceded that he did access the information while working for New PPI. He did not use the files from the music player at New PPI, but only the

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No. 2--07--0504 files from the travel drive. Mesch testified that many of the files were from Old PPI and that Stenstrom received them because he brought them to Stenstrom. He conceded that the files were on a computer that Stenstrom purchased. Mesch destroyed the DVDs before he left Stenstrom. Further, Mesch conceded that some of the data he copied from Stenstrom he used to prepare bids at New PPI. He did this on his own and not at New PPI's request. As of the hearing on the preliminary injunction, Mesch no longer possessed the computer files he copied from Stenstrom's computers. Within three days after the TRO was issued, Mesch turned over the Stenstrom data he had copied. Mesch further testified that he no longer had the spreadsheet available to him to prepare bids. However, he testified that he could reproduce it in two to three days because he developed the original. He would not have to rely upon any information from Stenstrom in order to recreate it. All of the information he requires "is readily available from manufacturers." Also, he knows from experience the discounts that Stenstrom obtains from its key suppliers. He can recite many of the discounts from memory. While working for Old PPI, Mesch prepared six bids for State Oil. State Oil was one of Old PPI's better customers. His contact at the company was Jim Peters. Mesch also prepared 12 bids for Road Ranger. His contact there was John Carabelli. Road Ranger was Old PPI's largest customer. Mesch further testified that Stenstrom's Road Ranger Hampshire computer file is in New PPI's Road Ranger Hampshire computer file. Mesch conceded that he bid on Road Ranger's Hampshire project while at Stenstrom and then bid on a larger version of that project while working at New PPI. Mesch also conceded that he successfully bid on a job for State Oil, the North Chicago

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No. 2--07--0504 project, for New PPI after having bid on the project for Stenstrom. Mesch testified that he used Stenstrom drawings to make the "CAD" drawings for New PPI to submit with its bid. New PPI's only successful bid as of the hearing date was the State Oil North Chicago project. Mesch bid on the project in September 2006 for Stenstrom. That bid was rejected. After he left Stenstrom, Mesch called Jim Peters and informed him that he had left Stenstrom. While working at New PPI, Mesch re-bid on the project, at Jim Peters' request. New PPI's bid was higher than Stenstrom's bid. At the time he left Stenstrom, State Oil had not yet rejected Stenstrom's bid for the North Chicago job. Comparing Stenstrom's unsuccessful bid with New PPI's successful bid, Mesch testified that the only differences are the names on the bids, the prices, and the payment terms. Mesch conceded that Stenstrom's name appears in several places in another bid he submitted on behalf of New PPI. Mesch also conceded that while working at New PPI he consulted Stenstrom bid information to obtain subcontractor electrical, canopy, and tank costs for bids. Mesch used the spreadsheet at New PPI with the new company's costs substituted in the place of Stenstrom's costs. B. David Sockness David Sockness, president of Stenstrom and of Stenstrom Excavation and Blacktop, testified on Stenstrom's behalf that both companies are owned by the same holding company. Sockness manages Stenstrom. He explained that the company, which has been in the petroleum business since 1982, installs petroleum equipment, such as tanks, piping, dispensers, islands, point-of-sale devices, tank-monitoring equipment, submersible pumps, and manholes. It also services the equipment it installs and places concrete. Stenstrom operates within a 100-mile radius of Rockford. In some cases, the company performs work outside this area.

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No. 2--07--0504 Sockness acknowledged that Stenstrom uses a spreadsheet to create its bids and that the information therein is not contained in the final bids submitted to customers. This information is valuable to Stenstrom. It includes all of its pricing, including material, labor, and equipment, and includes manufacturer discounts, vendor discounts, and profit margins. It also contains labor hours for jobs and labor rates. The spreadsheet can be used to determine future Stenstrom bids. Two current bidders use the spreadsheet. Stenstrom purchased the spreadsheet when it purchased Old PPI. It also purchased the Old PPI logo. According to Sockness, New PPI's logo is the same as Old PPI's logo. Sockness is unaware if Stenstrom registered Old PPI's logo or trade name. Sockness further testified that Stenstrom is moving away from the Timberline program and toward using the spreadsheet to bid on jobs. Stenstrom's largest customers are Kelley Williamson, Road Ranger, and State Oil. They comprise about 40% of Stenstrom's petroleum installation business and 40% of its petroleum service business. Old PPI had a strong relationship with Road Ranger, and this is one of the reasons Stenstrom bought Old PPI. This was also the case with State Oil. Stenstrom's second tier of clients includes Vista Marketing and Combined Oil. They comprise about 10% of Stenstrom's installation business and 10% of its service business. Stenstrom has never lost a major client. Stenstrom handles all of Kelley Williamson's and Vista's petroleum installation business. It performs about 50% of Road Ranger's local petroleum installation business. According to Sockness, Stenstrom maintains its relationships with its customers via marketing campaigns, personal calls, personal visits, and business meetings. Its client entertainment budget is $20,000. Sockness conceded that Road Ranger and State Oil get competitive bids from other companies for installation work. Also, Stenstrom does not have any agreement with Kelley Williamson to be its

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No. 2--07--0504 exclusive provider of installation services. Further, when Stenstrom purchased Old PPI, there was no promise by Road Ranger that a certain percentage of its business would thereafter go to Stenstrom. Stenstrom usually uses Nicholson Electric as its electrician. Al Hoover owns the company. New PPI also uses Nicholson Electric. Mesch would have had contact with Hoover at Nicholson Electric while Mesch worked at Stenstrom and would have developed a relationship with him. Sockness conceded that he is not aware of any reason Mesch should not go to Nicholson Electric to have electrical work done for New PPI. C. Brian Cotti Brian Cotti is the information technology manager for the Stenstrom companies. He testified that Stenstrom takes several steps to keep its information confidential. They include utilizing a firewall at the perimeter of its computer network; "NTFS" permissions that are built into the Windows operating system to determine whether a user is allowed to modify, open, or delete documents; computer authentication; and user authentication, which requires that a user log in to the network with a valid identification and password. Cotti further explained that the Timberline database similarly limits employees' access to information. The server room at Stenstrom is accessible only by key, and the physical job files are accessible only by key or key code. Cotti further testified that he ran a log of Timberline access and that the log showed that Mesch attempted to run tasks on Timberline, some of which failed. The failures occurred because Mesch did not have appropriate permissions to complete the tasks. Mesch was attempting to print a certain report. D. Robert Rowald

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No. 2--07--0504 Robert Rowald is a systems administrator and forensic examiner at Trekk Design, where he is in charge of the computer systems, servers, work stations, and related equipment, as well as forensic examinations. He holds several certifications and teaches certification courses. Rowald testified that a forensic copy is a bit-for-bit copy of a computer file, unlike a CD or DVD, which will change the last access date and modified date and will not show slack space, the area where files have been deleted, or unallocated space. Rowald made forensic copies for Stenstrom of one of its hard drives, a home hard drive, an external drive, and two DVDs. He was unable to make a forensic copy of a Dell DJ MP3 player, but did make a standard copy of the information on that device. Rowald also utilized Beyond Compare software to compare the binary codes in software files. He testified that the industry standard above which a work is considered definitely derivative is 70%. Comparing a "dwg" file called "Ranger Hampshire - Line Repair," dated September 21, 2005, from the Dell DJ, with "Ranger Hampshire - D-S-L Gas Island Config.," dated February 17, 2007, from the business hard drive, revealed that well over 70% of the data lines (i.e., zeros and ones) matched. Rowald explained that one could not redraw a "CAD" drawing by hand and have it match as much as these files did. According to Rowald, the only way to get this many lines to match is to make a file from another file. Rowald also compared a file named "Ranger Hampshire - Line Repair," dated September 21, 2005, from the Dell DJ, with a file called "Ranger Hampshire - Diesel Lane Conversion," dated February 15, 2007, from the business hard drive, and he testified that the match rate was significantly over 70%: 5,242 lines matched and 101 did not. Additional exhibits of "data compares" were admitted into evidence. The parties stipulated that one set of files came from Mesch's/New PPI's computers; that the comparisons compare Dell

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No. 2--07--0504 DJ documents with Stenstrom hard drive documents; and that they all have match rates above 85%.

E. James Peters James Peters, State Oil Company's general manager, testified on defendants' behalf that State Oil is a petroleum distributor that owns gas stations, the majority of which are in the Chicago and Lake County areas. Some are also in Boone and Winnebago Counties. Peters testified that he has known Mesch for 20 years. He came to know Mesch because Mesch's father worked for a company owned by State Oil. Peters testified that State Oil did business with Old PPI. Peters developed a business relationship with Mesch as a result. They also developed a personal relationship, as they became friends. State Oil did business with Stenstrom after Stenstrom purchased Old PPI. According to Peters, Mesch's employment with Stenstrom after the Old PPI purchase was a factor in his decision to do business with Stenstrom. He explained that he had never done business with Stenstrom prior to this time and that, when he found out that Mesch would be working for Stenstrom, he knew that he would be dependable. Peters explained that, for each of its jobs, State Oil receives about three bids. Peters selects the winning bid on the grounds of price and familiarity of entities and people, even if the result is selecting a higher bid. Mesch is one person with whom Peters is comfortable working. In about November 2006, Mesch informed Peters that he was leaving Stenstrom to work at New PPI. He asked if State Oil "would support him in the bidding process." Since joining New PPI, Mesch submitted to State Oil a bid for the North Chicago project. Mesch submitted the bid at Peters'

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No. 2--07--0504 request. Peters currently sends his repair work almost exclusively to Stenstrom. According to Peters, Mesch has not attempted to secure service-related repair work for New PPI. F. John Carabelli John Carabelli, vice president of construction at Road Ranger, testified on defendants' behalf that he has known Mesch for nine years. They met when Mesch worked at Old PPI. Carabelli developed a degree of trust and confidence in the work Mesch performed for Road Ranger. Part of the basis for continuing to do business with Stenstrom was the fact that Mesch worked there. Between 2003 and 2006, Road Ranger did not exclusively use Stenstrom for installation work. For the last three to four years, most of Road Ranger's projects have been done on a bid basis as opposed to a cost-plus basis. In December 2006, Mesch informed Carabelli that he was leaving Stenstrom to work for New PPI. Since January 2007, Road Ranger has received bids from New PPI, at Carabelli's request. As to the Hampshire project bid, it has not been determined if New PPI will get the job. Carabelli further testified that he has provided Mesch with "AutoCAD" drawings for gas stations so that Mesch could submit bids to Carabelli. G. Trial Court's Order On April 9, 2007, the trial court issued a memorandum opinion granting in part and denying in part Stenstrom's petition for a preliminary injunction. Addressing the covenant not to compete, the court found that it was reasonable in scope and time and supported by adequate consideration. Accordingly, it found that Stenstrom was entitled to injunctive relief in Winnebago and Boone Counties, "for whatever time remains on the covenant." As to the remaining counts, the court found "either" that Stenstrom failed to show a likelihood of prevailing on the merits "or that there is ample

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No. 2--07--0504 legal remedy available for the cause of action examined." It denied Stenstrom relief against New PPI. On April 25, 2007, the court entered the injunction in conformance with its opinion. Finding that Stenstrom had met the requirements for a preliminary injunction for violations of the restrictive covenant, the trial court enjoined Mesch from "performing, directly or indirectly, in any capacity, petroleum excavation or equipment repair work in Boone and Winnebago Counties for a period of six (6) months from the date of the termination of his employment" with Stenstrom. As to Stenstrom's claims of breach of fiduciary duty and violations of the Act, the court found that Stenstrom failed to show a likelihood of prevailing on the merits "and/or" a lack of an adequate remedy at law. Finally, the court found that Stenstrom "failed to meet its burden" to obtain an injunction against New PPI. Stenstrom timely appealed, and Mesch timely cross-appealed. III. ANALYSIS A. Stenstrom's Appeal 1. Breach of Restrictive Covenant Claim In its appeal, Stenstrom argues first that the trial court erred in enjoining Mesch, based upon the restrictive covenant, for six months from the date he left Stenstrom's employment. Stenstrom contends that the six months should have commenced as of the date Mesch ceased breaching the restrictive covenant--March 8, 2007, the date the TRO was entered. Stenstrom reasons that, otherwise, the injunction will apply to conduct that has already occurred. It argues that it is entitled to the full six-month period of noncompetition for which it bargained. Stenstrom relies on Prairie Eye Center, Ltd. v. Butler, 329 Ill. App. 3d 293 (2002). In that case, the defendant entered into a two-year restrictive covenant. The trial court, upon finding the

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No. 2--07--0504 covenant valid and enforceable, entered a preliminary injunction in 1999, finding that the defendant repeatedly violated his covenant not to compete. Following trial, the court entered a permanent injunction in 2000, extending the covenant by two years. On appeal, the court affirmed the trial court's judgment. We find Prairie Eye Center distinguishable because the covenant in that case provided that, upon breach of the covenant, the noncompetition period would extend by a time equal to the period beginning when the violation commenced and ending when the activities constituting the violation terminated. As the court noted, "the agreement itself provides for an extension of the restriction upon proof of its breach." Prairie Eye Center, 329 Ill. App. 3d at 305. Here, in contrast, the restrictive covenant provides that Mesch "shall not for a period of six (6) months from the date of termination of his employment with the Company" work in the excavation or repair field in Stenstrom's trade area. (Emphasis added.) There is no provision in the agreement for an extension of this period or any modification of the commencement date. We reject Stenstrom's argument that the Prairie Eye Center court's holding was an alternative one and not a necessary requirement for granting relief in that case. Our review of the decision does not lead us to conclude that the court intended such a reading. In explaining its holding, the court first contrasted the purpose of monetary damages as opposed to injunctive relief. Prairie Eye Center, 329 Ill. App. 3d at 304. The court then elaborated that the injunction gave the employer the agreedupon period of noncompetition. Prairie Eye Center, 329 Ill. App. 3d at 304. Notwithstanding the use of the word "further" in the paragraph containing the holding upon which we rely, the Prairie Eye Center court clearly rejected the employee's argument that the trial court erred in awarding both monetary damages and injunctive relief for an additional two-year term based on the restrictive

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No. 2--07--0504 covenant. In addition to providing for an extension, the covenant in that case also contemplated the assessment of damages. Prairie Eye Center, 329 Ill. App. 3d at 304. The court concluded its opinion by stating that "[t]he trial court simply enforced the parties' agreement." Prairie Eye Center, 329 Ill. App. 3d at 305. In summary, we reject Stenstrom's argument that the trial court erred in enjoining Mesch with the commencement date as his last day of employment with Stenstrom. 2. Trade Secrets Act Claim Against Mesch Next, Stenstrom argues that the trial court erred in denying it a preliminary injunction against Mesch based on violations of the Trade Secrets Act. In its complaint, Stenstrom alleged that its confidential information constitutes trade secrets under the Act and that it has exercised reasonable efforts to maintain the secrecy and confidentiality of its information. It further alleged that this information is not generally known by its competitors and, if known, would confer an economic benefit to them. According to Stenstrom, Mesch knew that its confidential information constituted trade secrets and he disclosed, misappropriated, and misused the secrets for his own benefit, resulting in injury to Stenstrom. Stenstrom requested injunctive relief, as well as damages, attorney fees, and an order directing Mesch to return to it all confidential information in his possession or control. A preliminary injunction is a provisional remedy granted to preserve the status quo pending a hearing on the merits of a case. It is "an extraordinary remedy used only in situations where an extreme emergency exists and serious harm would result in the absence of an injunction." Audio Properties, Inc. v. Kovach, 275 Ill. App. 3d 145, 147 (1995). To obtain a preliminary injunction, a party must establish that: (1) the party possesses a clear right or interest needing protection, such as confidential information; (2) the party has no adequate remedy at law; (3) irreparable harm will result

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No. 2--07--0504 if the preliminary injunction is not granted; and (4) there is a reasonable likelihood of success on the merits. Hanchett Paper Co. v. Melchiorre, 341 Ill. App. 3d 345, 351 (2003); see also Appelbaum v. Appelbaum, 355 Ill. App. 3d 926, 933 (2005). "Because a preliminary injunction is designed to preserve the status quo pending a decision on the merits, the plaintiff need not carry the same burden of proof that is required to support the ultimate issue." LSBZ, Inc. v. Brokis, 237 Ill. App. 3d 415, 425 (1992); see also Shapiro v. Regent Printing Co., 192 Ill. App. 3d 1005, 1009-10 (1989) ("purpose of a preliminary injunction is to raise a fair question as to the existence of a right needing protection, not to decide controverted facts or the ultimate merits"). To satisfy the first and fourth requirements, "a plaintiff need only raise a fair question as to the existence of the right which [it] claims and lead the court to believe that [it] will probably be entitled to the relief requested if the proof sustains [its] allegations." LSBZ, 237 Ill. App. 3d at 425. "On review, we will not disturb a trial court's decision to grant a preliminary injunction, absent an abuse of discretion." Hanchett Paper, 341 Ill. App. 3d at 351. The trial court found that Stenstrom failed to establish a likelihood of prevailing on the merits of its Trade Secrets Act claim against Mesch "and/or" that it failed to establish that there is no adequate legal remedy available. a. Protectable Interest and Likelihood of Success on the Merits We begin our analysis by examining whether Stentrom has a protectable interest. Under Illinois law, an employer's trade secrets are a protectable interest. See Liebert Corp. v. Mazur, 357 Ill. App. 3d 265, 276 (2005). The Act provides, in relevant part:

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No. 2--07--0504 " 'Trade secret' means information, including but not limited to, technical, or nontechnical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality." 765 ILCS 1065/2(d) (West 2004). Thus, a plaintiff must meet two requirements to show that its information is a trade secret under the Act. First, it must show that the information was sufficiently secret to give it a competitive advantage. 765 ILCS 1065/2(d)(1) (West 2004); Liebert, 357 Ill. App. 3d at 276. Second, it must show that it took affirmative measures to prevent others from acquiring or using the information. 765 ILCS 1065/2(d)(2) (West 2004); Liebert, 357 Ill. App. 3d at 276. In addition to the Act's requirements, when determining whether a trade secret exists courts often consider six common-law factors derived from section 757 of the Restatement (First) of Torts. See, e.g., ILG Industries, Inc. v. Scott, 49 Ill. 2d 88, 93 (1971), citing Restatement (First) of Torts

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