Heather Isringhausen Gvillo Feb. 17, 2015, 9:04am

A former recycling company employee denies violating any contracts after leaving the company, saying the contract she signed was “unfair” and “overwhelmingly” favored her former employer.

Totall Metal Recycling filed the Oct. 22 complaint alleging it hired defendant Lynn Fix to serve as a freight broker on its behalf in October 2005. Then on March 14, 2014, Fix submitted her resignation, the suit states.

Prior to leaving her employment, Fix allegedly gathered confidential contact information regarding Totall’s customers and suppliers, among other things. The plaintiff claims she disclosed the information to Totall’s business competitors, the complaint argues.

Totall alleges breach of contract against Fix, claiming she agreed to refrain from revealing confidential information when she began her employment with Totall, the suit states.

Fix answered the complaint on Dec. 4 denying the allegations against her and arguing that the plaintiff’s employment agreement is not an enforceable contract because it fails for lack of consideration. She explained in her affirmative defenses that the agreement was presented to her long after she began her employment with Totall Metal Recycling and was required to sign it without any consideration.

Fix also alleges she signed the agreement under economic duress at the time of the agreement and was “stripped” of her free will when she signed.

Additionally, she claims the agreement “overwhelmingly” favored the plaintiff, because it unfairly restricted her allowable employment in the event that she left the plaintiff’s employment, the answer states. But she alleges she did not have equal bargaining power because she was not given the chance to consult independent counsel.

Fix also argues that the plaintiff breached its contract by changing the terms of the contract without her consent.

Fix filed a motion to dismiss the complaint for failure to state a claim with her answer. She explains that a breach of contract claim requires that the defendant actually breach the contract and that damages exist.

Fix added that the complaint does not allege any specific breach of contract. Instead, it alleges she disclosed information to business competitors to the plaintiff’s detriment, but it failed to specify what information. In fact, the plaintiff only alleges “lost profits” as its damages, Fix says.

Totall seeks a permanent injunction that would prohibit Fix from violating the agreement, plus a modification to the agreement to enforce provisions in it. It also seeks a judgment of more than $50,000, attorney’s fees, costs and other relief the court deems just.

Circuit Judge Andreas Matoesian is presiding over the case.

Marleen Suarez of the Suarez Law Office, P.C., in Collinsville represents Fix.

Brian D. Flynn of Flynn, Guymon and Garavalia in Belleville represents Totall.

Madison County Circuit Court case number 14-L-1436

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