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ELECTRONICALLY FILED

2/20/2018 1:18 PM
2018-CH-02206
CALENDAR: 12
PAGE 1 of 13
CIRCUIT COURT OF
IN THE CIRCUIT COURT OF COOK COUNTY ILLI~ COUNTY, ILLINOIS
' ~:t1fANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISIQN..ERK DOROTHY BROWN

) VERIFIED COMPLAINT
Curtis Duffy and Michael Muser, )
Plaintiffs, ) Case No.:
)
V. ) Judge:
)
Grace MMC, LLC., d/b/a Grace Restaurant, ) Calendar:
Defendant. )
2

VERIFIED COMPLAINT FOR DECLARATORY RELIEF
AND INJUNCTION

Plaintiffs, CURTIS DUFFY (Duffy) and MICHAEL MUSER (Muser), by and through

their attorneys, O'Mara Gleason O'Callaghan, LLC, pursuant to 735 ILCS 5/2-701 complain of

the Defendant, GRACE MMC, LLC, d/b/a Grace restaurant, upon personal information as to their

own activities and upon information and belief as to the activities of others and all other matters,

and state as follows:

INTRODUCTION

1. Plaintiffs bring this Verified Complaint for Declaratory Relief and Injunction and

request this Court to declare the restrictive covenants contained within the Plaintiffs' Employment

Agreements unenforceable and to enjoin the Defendant from enforcing or threatening to enforce

such covenants.

2. Plaintiffs were formerly employed pursuant to Employment Agreements with

Defendant, Grace MMC, LLC, which operated Grace restaurant. (See Exhibit A, Employment

Agreement (Muser); and, Exhibit B, Employment Agreement (Duffy)).

3. Grace restaurant has been closed since December 20, 2017.
4. Each of Plaintiffs' Employment Agreements contained restrictive covenants,

including a covenant "Not-to-Compete" for a period of (18) months following each Plaintiffs

termination of employment. (See Ex. A at Sec. 9(b); and Ex.Bat Sec. 9(b)).

5. Plaintiff Muser's employment was terminated by the Defendant on December 1,
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2017 and Plaintiff Duffy terminated his employment by resignation December 18, 2017.

6. Despite having closed Grace restaurant on December 20, 2017, Michael Olszewski,

the LLC's sole member and owner (Olszewksi) has repeatedly threatened to enforce the Plaintiffs'

restrictive covenants to prohibit Plaintiffs from "competing" against his (now closed) restaurant.

7. One week after he closed Grace, Olszewski even went as far as to "leak" the

Plaintiffs' Employment Agreements, particularly the terms of their non-competes, to the press.

(See Exhibit C, Chicago Eater, Article 12/27/2017).

8. On information and belief, Olszewski provided that information to the press to

hinder Plaintiffs' ability to secure new employment opportunities and to depress the interest of

potential business investors interested in partnering with Plaintiffs in a new venture.

9. While Defendant is presently out of business, Olszewski has publicly stated that he

plans to open a new restaurant in Grace's West Loop space within six to eight months. (See Exhibit

D, Crain 's Chicago Business, Article 1/11/18).

1 Plaintiff Duffy originally resigned his employment pursuant to his Employment Agreement on
May 22, 2017. Three months later in September 2017, Duffy returned to work. However, when
Duffy began his second stint with the restaurant it was not subject to his former written
Employment Agreement, rather it was pursuant to an oral, at-will arrangement. Duffy terminated
this second stint of employment on December 18, 2017. For the purposes of the running of the
term on his restrictive covenants, Duffy's eighteen (18) month non-compete Term began May 22,
2017.

2
PARTIES

l O. Plaintiff Michael Muser is an individual and resident of the State of Illinois. Muser

was employed as Grace's General Manager and Head Sommelier.

11. Plaintiff Curtis Duffy is an individual and resident of the State of Illinois. Duffy

was employed as Grace's Head Chef.

12. Defendant, Grace MMC, LLC, is an Illinois Limited Liability Company which is

wholly owned by its sole member/manager Michael Olszewski. Its registered place of business is

652 W. Randolph Street, Chicago, IL 60661. Grace MMC, LLC was in the business of operating

a single restaurant-Grace.

JURISDICTION AND VENUE

13. This Court has jurisdiction over the present action under the Illinois Court of Civil

Procedure, 735 ILCS 5/2-701, where (1) Plaintiffs have an actual controversy requiring an

immediate and definitive determination of their rights; and (2) the Plaintiffs have an interest in the

controversy.

14. Venue is proper in this forum2 pursuant to Section 2-102(a) of the Illinois Code of

Civil Procedure. 735 ILCS 5/2-103(a). Defendant's principle place of business lies in Chicago,

Illinois, in Cook County.

2 The Employment Agreements at issue each contain identical arbitration provisions which require
that disputes arising in connection with these agreements be arbitrated. However, the arbitration
provisions have specific carveouts for equitable relief. Each states, "Although arbitration is
contemplated to resolve disputes hereunder, either Party may proceed to court to obtain an
injunction to protect its rights hereunder, the Parties agreeing that either could suffer irreparable
harm by reason of any breach of this agreement." (See Ex. A at Sec. 14; and, Ex.Band Sec. 14).

3
FACTUAL BACKGROUND

Grace Restaurant

15. Grace Restaurant was a world famous three Michelin Star awarded restaurant and

a culinary jewel of Chicago.

16. Curtis Duffy is an award-winning and highly respected chef who has received the

following accolades to name a few: Best Chef, Great Lakes Region, James Beard Awards (2016),

Chef of the Year, Eater National (2013), Named Legacy Chef, James Beard Awards (2010), Best

New Chef, Chicago Social Magazine (2009).

17. Michael Muser is a renowned wine sommelier and respected restaurant manager

with nearly 30 years' experience in the industry. He was named Sommelier of the Year, Food &

Wine Magazine (2014 ); Best Sommelier, Jean Banchet Awards (2012) Outstanding Wine Service,

Semifinalist, James Beard (2011 ).

18. Grace, under the management of Muser and culinary direction of Duffy, was an

immediate critical success. It was named Best New Restaurant, Chicago Magazine (2014) and

received the most prestigious of restaurant awards-three Michelin Stars-three consecutive years

in a row beginning in 2015 through its close in 201 7.

19. Grace was also a commercial success. As one of Chicago's most expensive

restaurants, Grace was profitable eight months after opening and Olszewski has publicly stated

that he recouped his entire $3 million-dollar investment in less than five years. (See Ex. D, Crain 's

Article) In fact, and upon information and belief, Olszewski, recouped his investment in three

years or less.

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The Creation of Grace

20. Duffy and Muser met in 2008 while working together at another Michelin Awarded

restaurant, Avenues in the Peninsula Hotel in Chicago.

21. Together Duffy and Muser conceived of opening a restaurant together-Grace.

22. In 2010 they first met Michael Olszewski who was then a guest of the Peninsula

Hotel and patron of Avenues restaurant.

23. Olszewski became acquainted with Duffy and Muser and ultimately agreed to enter

into a partnership with them wherein he would be an "armchair investor" and provide the financial

support for the creation of Grace. (See Ex. D, Crain 's Article).

24. Prior to opening Grace, Olszewski had no experience in the restaurant industry, and

in his own words, he did not even have prior experience with fine dining. (See Ex. D, Crain 's

Article).

25. Therefore, all of the "know-how" regarding the culinary and service operations of

Grace, as well as the client and industry contacts, were brought to the enterprise by the Plaintiffs.

The Nature of the Parties' Business Relationship

26. Despite Duffy and Muser conceiving of the restaurant, bringing their considerable

talents to the enterprise, and leveraging their personal reputations and contacts in the industry to

create Grace, Duffy and Muser never received any ownership interest in the restaurant.

27. Although Olszewski did not grant them any ownership interests in the restaurant,

Olszewski held out both Duffy and Muser as owners to the public to benefit from their reputations

and their goodwill. Olszewski even labeled each "Owner" and "Partner" respectively on the

restaurant's website, over which Olszewski had control.

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28. The only contractual documents defining the Parties' relationship are the

Employment Agreements at issue in this matter.

29. These Employment Agreements were drafted at Olszewski's request, by

Olszewski's attorneys, and presented to Plaintiffs for execution without the benefit or advice of

their own counsel.

30. Olszewski had each Muser and Duffy originally sign an Employment Agreement

in 2011, however, Olszewski had them each re-execute their Employment Agreements one year

later in 2012. The two contracts being identical except for Olszewski's changing of the stated

effective date of the agreements.

31. While Olszewski repeatedly referred to Curtis and Michael as "partners" and their

arrangement as a "partnership," their relationship was really nothing more than that of employer-

employee.

The End of Grace Restaurant

32. While the Employment Agreements did not provide the Plaintiffs with ownership

rights (which Plaintiffs were led to believed they were receiving), the agreements did provide each

Plaintiff with a right to share in the restaurants' profits after each had worked for five ( 5) years.

(See Ex. A at Sec. 4(b); and Ex.Bat Sec 4(b)).

33. On the five-year anniversary of their Employment Agreements, Olszewski was to

begin sharing his profits with Muser and Duffy who were each to receive one-third (1/3) of Grace's

"Monthly Net Revenues."

34. The five-year anniversary date of Plaintiff Muser's Employment Agreement was

December 1, 2017.

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35. However, on December 1, 2017-the very day Muser's right to share in the

restaurant's profits was to vest-Olszewski terminated Muser.

36. Plaintiff Duffy resigned shortly thereafter on December 18, 2017.

37. The remaining restaurant staff collectively walked-out on December 20, 2017 and

Olszewski closed Grace that evening.

38. Grace has not operated since and as of the date of this filing remains closed for

business.

39. While Olszewski's termination of Muser was the last act which effectively brought

the Parties' business arrangement to an end, Plaintiffs' disputes with Defendant had been

simmering for several years.

40. Because the Plaintiffs are seeking prospective declaratory relief as to the

interpretation of certain contract provisions as matters of law (as opposed to seeking resolution of

past factual disputes), the Plaintiffs will not comment further on the events and issues which arose

between the Parties since they are not relevant to the action at hand.

The Restrictive Covenants

41. The Employment Agreements contain several restrictive covenants which purport

to run for eighteen (18) months after the Plaintiffs' employment tcnninated (See Ex. A at Sec

9(a)-(j); and Ex. B at Sec 9(a)-(j)).

42. In particular, the Employment Agreements each contain the following restrictive

covenants:

• a Non-Solicit Provision of customers. (See Ex A and Ex B. at Sec 9(a)(i)).
• a Non-Solicit Provision of employees. (See Ex A and Ex B. at Sec 9(a)(ii)).
• a Non-Compete Provision. (Sec Ex A and Ex B. at Sec 9(b)).
• a Confidentiality Provision. (See Ex A and Ex B. at Sec 9(d)).

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43. The non-compete Provision of the restrictive covenants states that the enumerated

competitive activities are prohibited "in connection with any business or activity directly or

indirectly in competition with any of the business operations or activities of the Company." (See

Ex. A at Sec. 9(b); and, Ex.Bat Sec. 9(b) (emphasis added)).

44. Regarding the actual competitive activity which is purportedly prohibited, the

contracts bars competition at two phases of the employee's employment status. First, while the

employee is still employed, the prohibited enumerated activities are set forth Section 3(b ). For the

second phase, post-employment, the prohibited enumerated actives are set forth in Section 9(b ).

(See Ex. A and Ex. B at Sec. 3(b) and 9(b )).

45. Section 3(b ), which enumerates the competitive activities that are prohibited during

employment, explicitly includes the word "establish" among the activities the Plaintiffs may not

engage in as to a competitive business. However, the word "establish" is not among the enumerated

prohibited post-employment activities enumerated in Section 9(b). (Compare Ex. A and Ex.Bat

Sec. 3(b) with Sec. 9(b)).

Plaintiffs' Hardship

46. Plaintiffs each have families and children for whom they need to provide. Plaintiff

Muser has a newborn daughter and his wife does not presently work. Plaintiff Duffy has two pre-

teen daughters he supports.

47. Plaintiffs have not had consistent work in over two (2) months.

48. As a consequence of Olszewski's pervasive threat to enforce the non-compete

Provisions of their Employment Agreements despite his restaurant being closed, Plaintiffs have

been prevented from seeking meaningful work or from pursuing business opportunities in and

8
around Chicago (where each resides), in Cook County, or any collar county including Will,

DuPage, Kane, Kendall, Lake, and McHenry.

49. Each Muser and Duffy has had to use his limited savings and rely on his available

credit to support his family and pay for his daily living expenses. This is not a sustainable economic

situation as neither Plaintiff has unlimited savings, nor unlimited credit.

50. The debts each Plaintiff is incurring to support himself and his family will continue

to mount so long as each is unable to seek employment or pursue business opportunities due to

Olszewski's continued threat of litigation.

51. In addition to the financial injury each is suffering, the present legal uncertainty

regarding each Plaintiffs ability to seek employment or pursue business opportunities is causing
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Employment Security that he is seeking work. However, Olszewski 's continuing threat of
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&:l ~ litigation prevents him from seeking work within any feasible commuting radius. For Duffy, he
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has had, unfortunately, to petition the court to modify his child support obligations requesting

abatement until he is able to secure employment, however he presently cannot provide the court

any insight as to when he might secure employment due to Olszewski's threats to enforce the non-

compete.

52. There exists between Plaintiffs and Defendant an actual, immediate and justiciable

dispute on these issues which requires adjudication by this Court.

53. There is no adequate remedy at law for Plaintiffs. The Plaintiffs are seeking

prospective relief and a declaration of their rights so that they do not take a course of conduct

9
which might open them up to liability. Because the remedy Plaintiffs request is prospective, there

is no other remedy at law, but equitable and declaratory relief.

RELIEF SOUGHT

WHEREFORE pursuant to 735 ILCS 5/2-701 et seq. Mr. Duffy and Mr. Muser seek this
Court to declare:

A. That the restrictive covenants contained in the Plaintiffs' Employment Agreements are

unenforceable where Defendant is out of business;

B. That, even if Defendant were to re-open, the Defendant does not have a legitimate business

interest to protect;

C. That establishing, forming, organizing, building, creating and any other activity which does
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competitive activity and, therefore, is not prohibited by the restrictive covenants;
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o!:::!ooc, D. That the restrictive covenants are unenforceable where they result in undue hardship to Mr.
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E. That Defendant is barred from enforcement of the restrictive covenants;

F. Any other further relief as this Court may deem just and proper to which they may be

entitled as a matter oflaw.

10
Dated: February 20, 2018

RESPECTFULLY SUBMITTED,

Curtis Duffy and Michael Muser
Plaintiffs

By:
One ofTh~~0!torneys

Sean O'Callaghan
O'Mara Gleason O'Callaghan, LLC
Firm No.: 56539
230 W. Monroe St., #2620
Chicago, II. 60606
(t) 312 600-5588

11
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION

)
Curtis Duffy and Michael Muser, ) Case No.:
Plaintiffs, )
) Judge:
V. )
) Calendar:
Grace MMC, LLC., )
Defendant. )

VERIFICATION

Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil
Procedure, I Michael Muser, certify that the facts alleged in the forgoing Verifiedctomplaintlfor
Declaratory Relief and Injunction are true and correct,,excepJ,as to ,ll}atte~&ei itated,(
o;l5e on
information and belief and as to such matters71ii
v~z?~

~-
Plaintiff

Subscribed and Sworn to before me
this {2(111, day of'ft,m/C1Cvf , 2018. "MflCIAL IIAL"
A. Pizarro
Notaty Pulitic;· ~ of Illinois

~ .•••.....•.....• , .•...•.
My CommitsiQn fapim OS/03/2020

Sean O'Callaghan
O'Mara Gleason O'Callaghan, LLC
Atty Firm No.: 56539
230 W. Monroe St., #2620
Chicago, II. 60606
(t) 312 600-5588
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION

)
Curtis Duffy and Michael Muser, ) Case No.:
Plaintiffs, )
) Judge:
V. )
) Calendar:
Grace MMC, LLC., )
Defendant. )

VERIFICATION

Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil
Procedure, I Curtis Duffy, certify that the facts alleged in the forgoing Verified Complaint for
Declaratory Relief and Injunction are true and correct, except as to-matter..:therei_n stated to be on
information and belief and as to such matters, I believe tge-sameto ge"frue)

Curtis Duffy~
Plaintiff

. -.-.
.._,FflCIAL SEAL,.
~~·-j J
A. Pizarro
Notary Publk:. Stale of Illinois
My CommissiQn Expires 05/03/2020
--- - --. ----------

Sean O'Callaghan
O'Mara Gleason O'Callaghan, LLC
Atty Finn No.: 56539
230 W. Monroe St., #2620
Chicago, II. 60606
(t) 312 600-5588