The Illinois Supreme Court recently resolved an outstanding question under Illinois law of whether the Illinois Workers Compensation Statute is the exclusive remedy against an employer by a former employee claiming damages for asbestos related injuries, including long developing cancers. In Folta v. Ferro Engineering, 2015 IL 118070 (Nov. 4, 2015), in a 4 to 2 opinion by Justice Theis, the Court specifically held that the Illinois Workers’ Compensation Act (820 ILCS 305/1) prohibits an employee from bringing an action for damages for an asbestos related cancer in circuit court against the employer, even if the employee’s injury or disease first manifests after the running of the time limitations provided under the Act.
James Folta was employed as a shipping clerk and product tester for Ferro Engineering from 1966 to 1970, where he was exposed to asbestos containing products. In May 2011, James Folta was diagnosed with mesothelioma, a cancer primarily associated with asbestos exposure. One month later he filed a civil action in Cook County Circuit Court against 15 defendants, including his former employer, Ferro Engineering, to recover damages. Folta sought relief against Ferro Engineering under several theories including negligence. (more…)
This blog provides an overview of environmental or energy laws passed or amended by the Missouri legislature in the First Regular Session of the 98th General Assembly. This was an active legislative session with several amendments relevant to water, solid waste, oil and gas, and local government.
Clean Water Law
HB 92 amended the policy statement of the Missouri Clean Water Law by stating that it is the policy of this state to strive to meet the objectives of the Missouri Clean Water Law while maintaining maximum employment and full industrial development of this state. This also requires the Clean Water Commission to seek the accomplishment of the objectives of the law by all practical and economically feasible methods. It also requires the Department of Natural Resources to perform an affordability when issuing permits for discharges from water or sewer treatment works, in addition to discharges from certain publicly owned treatment works. Finally, this modifies the definition of “finding of affordability.” (more…)
While I don’t want to take you on a full “Dam Tour” (a reference to the classic National Lampoon movie “Vacation”) the USEPA recently promulgated a rule which defined the Waters of the United States or WOTUS. Trying to figure out what is a WOTUS has been a pretty complicated affair; good for those charged with trying to figure that out, but bad for those paying them to do so.
So the USEPA and the Army Corp of Engineers (USACE) decided to try to make it a little easier for those paying the bills of those trying to figure out what a WOTUS is. A quick overview of the Rule, which was supposed to go into effect on August 27, 2015 (we just love it when we can give some hot off the press news), at least according to the Agency, (USEPA, that is) was designed to “protect the streams and wetlands” and simplify, clarify, and identify those waters. (Take a look at http://www2.epa.gov/cleanwaterrule/what-clean-water-rule-does). (more…)
In addition to my environmental practice, I also handle many regulatory and compliance issues, including the labeling of food products. This blog is dedicated to the issue of food product labeling. (more…)
So, you’ve decided to incorporate your business or operate your business as an LLC.
However, merely filing the “proper paperwork” with the Missouri Secretary of State’s Office to form a corporation or an LLC is not the end of your endeavor. This blog post explains necessary steps to ensure that you properly establish and maintain your business’ corporate or LLC status. (more…)
This blog post is dedicated to the divisibility defense available under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).
The specter CERCLA liability strikes fear in the eyes of any potentially responsible party (“PRP”). This is due, in part, to the fact that liability under CERCLA is generally joint and several. This means that a PRP can be held responsible for the entirety of the costs to clean up a site, despite other parties’ contribution to the contamination. (more…)
Clients often ask me: “Can we trademark this?” or “Should we trademark this?”
I respond bluntly, but politely: “In the United States, we do not “trademark” anything.”
Admittedly, I can be an annoying verbal perfectionist. However, the true reason I respond bluntly is because it genuinely matters to me that my clients fully understand the core, easily graspable principles of how trademark and service mark rights are created. A long-winded (i.e., “typical lawyer”) explanation, with caveats, disclaimers and war stories would thwart that objective. As a matter of fundamental branding acumen and saving attorneys’ fees, all businesses must to understand how marks (i.e., their brands) are created. Startup companies should have this understanding right from the beginning, particularly if they have a near term exit strategy as part of their start up strategy. (more…)
The Missouri Court of Appeals for the Eastern District recently upheld a limitation of liability clause contained in an invoice between two commercial “sophisticated” businesses, holding that the effect of the limitation is not dependent on the “sophistication” of the business in the underlying transaction.
In National Information Solutions, Inc. v. Cord Moving & Storage Company, Inc., No. ED 101636 (February 24, 2015), the Court of Appeals affirmed the granting of defendant Cord’s motion for summary judgment based on a limitation of liability provision in an Office Relocation Agreement to move the contents of NISC’s warehouse to a new location. The one-page Agreement contained a clause in the middle of the only page of agreement, in bold typeface, larger than the rest of the contract, that read: (more…)
In a recent decision, the Missouri Supreme Court unanimously held that a non-Missouri business that sells products on EBay or other auction sites can be sued in a Missouri Court by a Missouri resident claiming a defect with the product.
In Andia v. Left Gate Property, Inc., No. SC93984 (February 24, 2015) the Missouri Supreme Court held that Left Gate Property, a Texas automobile dealership which is self-described as the “largest EBay vehicle dealership in the world”, would be subject to personal jurisdiction by a Court in St. Louis County. (more…)
On June 17, 2013, the Illinois Assembly enacted the Hydraulic Fracturing Regulatory Act. See Public Act 098-0022. This Act empowered the Illinois Department of Natural Resources (“Department”) to regulate hydraulic fracturing in throughout the State of Illinois. This blog entry summarizes key aspects of this newly enacted law.
Hydraulic fracturing or “fracking” is a process used to exploit oil and gas formations previously deemed either too difficult to reach or unproductive due to greatly diminished output. Fracking is the process of pumping, under high pressure, engineered fluids containing chemical and natural additives into the natural gas or oil well. This process creates and holds open fractures in the oil or natural gas formation. These fractures, by increasing the exposed surface area of the rock in the formation, allow oil and gas to flow up through the well. Thus, fracking allows the extraction of oil or natural gas from previously unavailable sources, including tight sands, shale gas, coal bed methane (CBM), and other unconventional shale formations. (more…)