Kevin M. Cloutier

Kevin Cloutier is a partner in the Labor and Employment and Business Trial Practice Groups. Kevin is the Leader of the Firm's Non-Compete and Trade Secrets Teams. He is a member of the Firm’s Executive Committee and is a past member of its Compensation Committee. He is also a member of the Firm’s Diversity and Inclusion Committee and acts as the hiring partner for the Firm's Chicago office.

Areas of Practice

Kevin’s national practice focuses on all areas of labor and employment law and business litigation, with an emphasis on high-stakes, employment-related litigation and proactive investigations and counseling for management-side clients. He is consistently recognized by his peers as one of the leading lawyers in Illinois and nationally (Illinois Super Lawyers and Best Lawyers in America), and has been named a Labor and Employment Star by Benchmark Litigation. The American Lawyer has twice named Kevin a “Litigator of the Week”. On several occasions, former adversaries have retained Kevin following the conclusion of litigation.

In particular, Kevin and his team focus on the following areas:

Litigation and Trial Work

Kevin is an experienced trial lawyer with first-chair trial experience before state and federal trial and appellate courts all over the country, arbitrators, FINRA, the National Labor Relations Board, and administrative agencies. He has successfully argued and won multiple law-changing and precedent-setting federal appeals on behalf of his clients. Kevin has represented clients in more than 25 states.

Kevin defends employers of all sizes in restrictive covenant and trade secrets actions, class and collective actions, multi-plaintiff and single-plaintiff cases, including whistleblower and whistleblower retaliation actions, breach of contract actions, statutory employment claims, wage and hour claims, antitrust, deceptive trade practices, unfair competition, defamation, mass layoffs (WARN), retaliatory discharge, negligent hiring and retention, reverse discrimination claims, white-collar criminal matters, traditional labor law, employee privacy and BIPA, tort and contract claims, credit reporting “background” claims, and ERISA benefits claims.

Kevin is recognized as one of the nation's leading unfair competition, "non-compete" and trade secrets lawyers and regularly prosecutes and defends actions involving the enforcement of restrictive covenants and non-competes, deceptive trade practices, trade secret claims, the Lanham Act, unfair competition and employee raiding claims. Kevin and his team routinely prosecute and defend expedited proceedings, often mobilizing on a moment’s notice and obtaining successful expedited injunctive results (temporary restraining orders and preliminary injunctions) within days of a client engagement. Kevin is the co-head of the Firm’s trade secrets and restrictive covenant teams. Kevin and his team brought one of the first lawsuits invoking the federal Defend Trade Secrets Act in 2016. He also assists clients with litigation over partnership dissolutions, deceptive trade practices and business/partner/joint-venture “break-ups.”

In addition, Kevin manages class and collective actions, related to all forms of wage and hour disputes, including overtime, misclassification, and independent contractor issues. He regularly designs and then leads creative and successful defense strategies for complex class and collective actions. Most recently, he defeated conditional certification of an “off-the-clock” claim in federal court in Florida, gutting a collective of over 80,000 class members.

Internal Investigations

Kevin regularly conducts internal investigations for employers, boards of directors, and special committees. Kevin and his team are experienced and skilled investigators, handling a variety of investigatory matters involving whistleblower claims, harassment and workplace misconduct, code of conduct violation claims, trade secret misappropriation, self-dealing and embezzlement, conflicts of interest, insider trading, false claims, and other workplace issues. In these investigations, Kevin and his team typically interview multiple witnesses, review and analyze salient documents, analyze forensic accounting materials and electronically stored information, and then prepare analytical reports for his clients. He also works with governmental agencies such as the OIG, DOJ and DOL in connection with outside investigations. Kevin’s investigatory work cuts across industries and geographies; Kevin’s most recent investigations occurred in Arizona, Texas, Michigan, Indiana, Illinois, Georgia and Florida. Kevin and his team also proactively investigate and assess client business plans when they enter new sectors or markets. Finally, Kevin regularly assists clients in investigating possible trade secrets misappropriation matters, often partnering with forensics experts.

Corporate Transactions and Private Equity

Kevin is a member of the firm’s Private Equity Team and routinely represents funds and their portfolio companies in a variety of litigation and counseling matters. He also performs due diligence for fund and other corporate clients in connection with mergers and acquisitions and counsels them in connection with post-acquisition transition and restructuring issues. In connection with such transactions, Kevin regularly prepares employment agreements, separation agreements, non-disclosure and confidentiality agreements, employee handbooks and human resources policies. He also counsels clients on the employment-related aspects of mergers, acquisitions and other corporate transactions.

Counseling and Advice

In addition to his litigation and investigative experience, Kevin operates as a general employment counselor to his clients and coaches human resource professionals and other business executives on how to comply with various human resources and employment laws. Kevin is a former high school teacher, and he enjoys counseling his clients. He frequently presents training sessions on critical employment issues, such as harassment prevention and investigation, responding to whistleblower complaints, independent contractor classification, restrictive covenant, trade secret and non-compete situations, trade practices, unfair competition wage payment and overtime FLSA compliance, employee privacy and biometrics, conducting effective workplace investigations, union avoidance and awareness, FMLA and time-off issues, reductions-in-force, labor disputes and general human resources strategies.

Further, Kevin assists multinational clients, primarily Canadian-based entities, in cross-border labor and employment issues in the U.S. He partners with multinational clients on strategic planning, compliance, executive compensation, and global movement of employees. In addition, Kevin has established strong relationships with local counsel in many countries and frequently partners with foreign counsel to assist clients.

Kevin's client base is broad and geographically diverse and includes employers in private equity, financial services, real estate, REITs, digital marketing and advertising, energy, healthcare, construction, transportation, logistics, food and beverage, security services, computer hardware and software, retail, pharmaceuticals, insurance and manufacturing.

In addition to his corporate work, Kevin is committed to pro bono work and has successfully represented several prisoner and of-need clients in important federal court litigation. He also regularly counsels non-profit social services agencies on a wide range of employment matters.

Experience

Recent Litigation Matters

• Obtaining reversal and mandated judgment for a national carrier client in an appeal before the Eighth Circuit in an employee raiding, non-compete, and tortious interference case
• Obtaining multiple temporary restraining orders, preliminary injunctions and permanent injunctions in non-compete, unfair competition, deceptive trade practices and trade secrets cases around the country on behalf of national security services firm
• Obtained temporary restraining order and preliminary injunction in a trade secret and non-solicit case in Texas
• Representing a national transportation company in nationwide FLSA "off-the-clock" action, successfully compelling arbitrations and negotiating favorable settlement
• Successfully defending against and defeating conditional certification in a nationwide FLSA “off-the-clock” action
• Successfully representing an international pharmaceutical company in a multi-million dollar stock option breach of contract action and obtaining summary judgment in favor of client
• Successfully representing a geospatial solutions provider in trade secrets misappropriation case in Oregon State and obtaining temporary restraining order sidelining departing employees and preventing misappropriation
• Representing an international carrier in a retaliatory discharge case in federal court, obtaining summary judgment in district court and successfully arguing appeal before the Seventh Circuit that resolved in favor of employers a critical and unsettled question of law regarding the proper standards for retaliatory discharge cases under Illinois law when litigated in federal courts
• Successfully representing an international carrier in a series of FLSA misclassification arbitrations
• Successfully representing a pro bono client in a Seventh Circuit discrimination action
• Representing an international construction services firm in a FLSA collective action and state law class action alleging misclassification of employee FLSA exemptions for overtime purposes and failure to pay overtime
• Successfully representing an international pharmaceutical company in False Claims Act “whistleblower” action and obtaining summary judgment in favor of client
• Successfully representing an international architectural services outsourcing firm in multi-day arbitration against former executive for severance claim
• Representing a hedge fund and a newly hired employee in Illinois state court in a “non-compete” and employee non-solicitation case, successfully overcoming the former employer’s motion for a temporary restraining order and prevailing in arbitration before FINRA
• Successfully representing a private equity client and a portfolio company’s board of directors in a commercial arbitration breach of contract case against a former executive of the portfolio company
• Successfully representing a pro bono client before the Seventh Circuit Court of Appeals in a Section 2255 motion to vacate a judgment
• Representing a national healthcare company in federal court in a “non-compete” and trade secret case, which resulted in a temporary restraining order against a former employee and a competitor
• Representing a national software development company in Alabama state court in a non-compete and employee raiding case, which resulted in a temporary restraining order and preliminary injunction against former employees and competitor
• Representing a national manufacturing company in South Carolina state court in an unfair competition, deceptive trade practices, trade secret and employee raiding case, which resulted in a preliminary injunction in favor of client against a former employee and competitor
• Representing a healthcare employer in a labor discharge arbitration, which resulted in an award denying the employee’s grievance and affirming the client’s discharge decision based on “just cause”
• Representing a national manufacturing client in a retaliatory discharge case in Illinois state court and obtaining a dismissal on summary judgment
• Representing a national healthcare employer in a breach of contract and fraud case in Illinois state court and obtaining a dismissal based on ERISA preemption
• Representing a national health and pharmaceutical research company in a disability (ADA) discrimination and denial of benefits (ERISA) case in federal court and obtaining a dismissal on summary judgment
• Representing an international financial services fund in commercial arbitration case involving enforceability of restrictive covenants, bonus compensation eligibility and forfeiture of deferred compensation benefits, which resulted in an award in favor of the employer and dismissal of the employee’s claims after a full evidentiary hearing

Honors

Labor and Employment Star, Benchmark Litigation, 2018-2023

Illinois Super Lawyer, Super Lawyers, 2013-2023

Best Lawyer in America, Best Lawyers, 2014-2023

Rising Star, Illinois Super Lawyers, 2010-2012

Articles

• "Engaging in Discovery on Behalf of Plaintiffs in Trade Secret Misappropriation and Breach of Restrictive Covenant Actions," Lexis Practice Advisor, January 27, 2017
• "What Organizations Need to Know When Facing Conditional Certification Under Section 216(B) of the FLSA," Thomas Reuters, August 2016
• Co-Author with C.T. Oblander and K. Zeabart, “EPLI, Invasion of Privacy, and Identity Theft,” The John Liner Review, Vol. 19, No. 3, 21-35, Fall 2005
• He also has previously published articles in the Employment Law Strategist. 

Corporate & Securities Law Blog Posts

• "Buyer Beware: Delaware Declines to Enforce Sale of Business Non-Compete," January 23, 2023
• "Sellers Beware: Fiduciary Duty Risks to Directors," March 16, 2021

Labor and Employment Law Blog Posts

• "Illinois Supreme Court Rules All BIPA Claims Are Subject to Five-Year Time Limit," February 3, 2023
• "FTC Seeks to Ban Noncompete Agreements in Employment Contracts," January 6, 2023

• "Could the Supreme Court’s Decision in the Harvard and UNC Cases Indirectly Affect Corporate Diversity Initiatives?," November 17, 2022
• "Buyer Beware: Tenth Circuit Issues Decision Emphasizing Critical Need for Employment Diligence," September 1, 2022
• "Colorado’s New Restrictive Covenant Law Now Effective," September 1, 2022
• "Buyer (and Seller) Beware: The FTC Is Coming for Your M&A Non-Competes," June 21, 2022
• "Void vs. Voidable: The Distinction That Can Make or Break a Tortious Interference Claim in Light of the Great Resignation," May 9, 2022
• "Seventh Circuit Certifies Hotly-Contested BIPA Accrual Issue to Illinois Supreme Court," January 10, 2022
• "Illinois Appellate Court Affirms 5-Year Statute of Limitations Period for Certain BIPA Claims," September 20, 2021
• "President Biden and OSHA to Require Vaccine Mandate or Weekly Testing for Employers with 100+ Employees," September 10, 2021
• "Illinois Governor Signs Non-Compete Legislation," August 26, 2021
• "What Do I Do With My Workplace Drug Policy Now That Cannabis Is Legal in Illinois and My Employees Are Remote?," July 28, 2021
• "What Employers Need to Know About New Non-Compete Legislation in Illinois," June 8, 2021
• "Governor Signs Sweeping Changes to Illinois Employment Laws," May 12, 2021
• "The Critical Nature of Labor and Employment Diligence in Transactions," March 18, 2021
• "Fifth Circuit Shuts Down FLSA Conditional Certification," February 1, 2021
• "What Employers Need to Know About Colorado’s New Equal Pay Act," December 9, 2020
• "Employers: Do Not Forget Your Sexual Harassment Prevention Training Requirement," May 4, 2020
• "U.S. Supreme Court Case Preview—Van Buren v. United States: Does Use of a Computer for an “Improper Purpose” Violate the Computer Fraud and Abuse Act?," April 30, 2020
• "DOJ and FTC Issue Joint Statement Regarding COVID-19 and Antitrust Violations," April 22, 2020
• "The CARES Act: A Comprehensive Overview for Employers," March 31, 2020
• "Illinois Statewide Stay at Home Order: What Employers Need to Know," March 20, 2020
• "Proposed Bill Would Ban Employee Non-Compete Agreements in Illinois," February 19, 2020
• "The Time Is Now for Employers in Illinois to Abide by New Laws," January 9, 2020
• "Salary History Off-Limits Under New Illinois Equal Pay Law," August 2, 2019 
• "Actual Injury Unnecessary to Sue Under Illinois Biometric Law," February 5, 2019 
• "Lessons Learned: Tips on How to Allege and Argue Trade Secret Misappropriation at a Preliminary Injunction Hearing," August 30, 2017 
• "For Your Consideration: Recent State-to-State Developments on Sufficient Consideration for Employee Non-Compete Agreements," March 27, 2017
• "New Guidance for HR Professionals Regarding Wage-Fixing and No-Poaching Agreements Highlights New Focus on Criminal Prosecutions and Raises New Concerns for Employer," December 5, 2016
• "Illinois Limits Non-Compete Agreements Yet Again," September 7, 2016
• "The Defend Trade Secrets Act – Coming to a Federal Court Near You," May 9, 2016
• "An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes," December 12, 2014

Trade Secrets Law Blog Posts

• "Supreme Court Narrows The Scope of Liability Under The Computer Fraud and Abuse Act," June 8, 2021
• "Diminution in Value As A Measure of Damages for Trade Secret Misappropriation," March 16, 2021
• "Fifth Circuit Affirms Attorney’s Fee Award of $2.3 million in Misappropriation Case Against Former Employee who Failed to Comply with Court’s Objections Order," September 22, 2020
• "Cybercrime 2020 – The Rise of 'Vishing'," August 28, 2020

Books

Media Mentions

Speaking Engagements

• Kevin is often invited to present at professional associations and industry seminars. He has presented a number of seminars on the interplay of the American with Disabilities Act, the Family and Medical Leave Act and Workers’ Compensation laws. In addition, he recently delivered a presentation regarding employment issues facing private equity firms and their portfolio companies and common employment issues arising in corporate transactions. He has also presented on employee (mis)classification issues under wage and hour laws and on emerging issues in trade secrets laws and noncompetes.

Events

Memberships

Member, Society for Human Resources Management (SHRM)

Member, Labor and Employment Section and the International Law Section, American Bar Association

Member, Houston Bar Association

Member, Chicago Bar Association

Member, U.S. Soccer Federation (Licensed U.S. Soccer Coach)

Member, Sports Lawyers Association

Member, Canadian-American Bar Association

Digital Media