Missouri Court of Appeals Says Limitation of Liability Clause in Contract does not Require a Party to be a “Sophisticated Business” in Specific Subject of Contract

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…)

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Selling Items On EBay May Lead To Personal Jurisdiction In Missouri

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…)

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Fracking Comes to Illinois; Drilling Into the Hydraulic Fracturing Regulatory Act

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…)

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Think Twice Before Suing to Enforce a Confidentiality Agreement

This past October, in nClosures Inc. v. Block and Company, Inc., the 7th Circuit Court of Appeals ruled that under Illinois law, a confidentiality agreement is not enforceable in absence of proof that reasonable efforts were undertaken to maintain the confidentiality of information shared pursuant to the agreement.

A. Why is this ruling important?

Virtually every company uses confidentiality agreements. Many do so routinely — with the full expectation they will be enforced on the basis that the parties contractually agreed to treat all information shared as confidential.

The nClosures ruling turns that expectation on its head and indicates that confidentiality agreements are not automatically enforceable and are only enforceable when the shared information is actually confidential. (more…)

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EPA Revises RCRA Definition of Solid Waste

On December 10 2014, EPA pre-published certain revisions to RCRA’s definition of solid waste. This is a pre-published version of the final rule that EPA is submitting for publication in the Federal Register. The final rule is of greatest impact to the manufacturing sector.  Those areas of the manufacturing sector impacted the most by this final rule consist of metals, metal products, machinery, computer & electronics, electrical equipment, transportation equipment, furniture, wood products, paper, printing, petroleum & coal products, chemicals plastics and rubber products, and nonmetallic mineral products, and other miscellaneous manufacturing sectors. The final rule would also have more limited applicability on the public administration factor and the professional, scientific, technical sectors.

First, the rule revises the exclusion for Hazardous Secondary Materials (HSMs) that are legitimately reclaimed under the control of the generator. The revisions include: (1) adding a codified definition of “contained,” (2)  adding recordkeeping requirements for same-company and toll manufacturing reclamation; (3) making notification a condition of the exclusion; (4) adding a requirement to document that recycling under the exclusion is legitimate; and (5) adding emergency preparedness and response conditions. (more…)

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Missouri Attorney General Files TRO to keep Ebola Medical Waste Out of St. Louis Treatment Facility

The Missouri Attorney General’s Office seeks to enjoin an Illinois-based company with a facility in north St. Louis from accepting Ebola medical waste from Texas. The Attorney General’s action is due to the facility’s prior compliance history, namely its past violations of Missouri medical waste laws and regulations. In light of the threat posed by the Ebola virus, the Missouri Attorney General is not confident that the facility is capable of carrying such a large responsibility for the proper handling, treatment and disposal of the Ebola medical waste. The attorney general’s action is demonstrative of the importance of a facility’s environmental compliance record, particularly when lack of compliance poses a potentially substantial public health risk. The occurrence of Ebola in the United States brings to prominence the importance of proper handling, treatment and disposal of medical waste and the substantial consequences associated with strict compliance with these laws and regulations. (more…)

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Sumpin’ New on All Appropriate Inquiries

Since the last blogs on what one needs to do when acquiring an interest in real estate, there have been a change or two which are kind of important. See examples 12 and/or 3. The most significant is that there is a new ASTM 1527 standard; ASTM 1527-13 to be exact. In the event one does not know why we get to do an environmental site assessment with each acquisition of any interest in real estate, just re-read the above posts, or read the following brief review. (more…)

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Inherently Confusing: Bikes and Trademarks (Part 3)

What we Learned From the Specialized Trademark Incident

Part 3 – The Internet Determines Whether Marks are Confusingly Similar.

In my last post, I followed upon the discussion of the Specialized trademark saga. That saga provides another important pointer for trademark practitioners.

A trademark can only have one owner — the owner is the exclusive source or quality control agent of the goods sold under the mark. (That owner may in turn license others if the owner is monitoring the quality of goods sold under the mark. So in the case here, ASI was assumedly monitoring the quality of Specialized bikes sold under the Roubaix mark.) This is an important point, because it puts a trademark owner in a difficult position. (more…)

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Inherently Confusing: Bikes and Trademarks (Part 2)

What we Learned From the Specialized Trademark Incident

Part 2 – Never Miss an Opportunity to Publicly Scold Your Competitor.

In my last post, I opened a discussion on the Specialized trademark saga, with the goal of highlighting what hard rules, according to the Internet, apply when dealing with a mark infringement issue.  Our first take-away point was this little gem:  Mark owners who fear infringement must investigate the veteran status of the alleged infringer before sending out a cease and desist letter.  The saga teaches us a second rule, which I explain below. (more…)

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Inherently Confusing: Bikes and Trademarks (Part 1)

What We Learned From the Specialized Trademark Incident…
Part 1 – Always Investigate the Infringer’s Military Service History

People always complain: Why must everything in the law be so uncertain? What happened to black and white rules of law? How come everything involves a multi-factor balancing test that depends upon facts that require a 36-month lawsuit to uncover and a jury three days to decide? Well, sometimes, current events provide us a lesson that does provide us with black and white principles of law.

For example, three months ago the Specialized Bicycle company sparked a wildfire of Internet discussion when it sent a letter to a Cochrane, Alberta bicycle shop requesting it cease from using the word ROUBAIX as part of its name. It seems the bicycle shop decided to call itself “Café Roubaix.” The backlash supposedly went “viral” and even included reports appearing on cycling media outlets. An example of the “jumping on the pile” response from the Internet are the several articles appearing last December on the Velonews website. I especially liked the story objectively entitled: “Specialized’s disastrous trademark case is unnecessary to defend the brand.” So what are the hard and fast rules of law we learned from this incident? Well, here is the first rule: Investigate whether the alleged infringer is a war veteran.

Every story I came across about this matter pointed out that the bicycle shop owner was a veteran of the Afghanistan war. And though I am greatly in favor of veteran rights and accommodations (and was so years before it became Hollywood fashionable to do so), I was not sure what veteran status had to do with trademark rights. Of course, the Internet is never wrong. In discussing the pertinent merits of the Specialized trademark matter, the Internet nabobs would certainly not key onto an immaterial point just to create press? Would they? That would be so highly unusual.

I instruct all clients forming a new business or rolling out a new brand that the best money one can spend is on a comprehensive search to determine what other marks and names may be out in the business world that could pose infringement issues. In this case, the bike shop’s owner apparently opened his shop without even checking the Canadian intellectual property office’s registry of marks. Had he, he would have seen that Specialized owned a registration for the mark “ROUBAIX” for use in connection with bicycles and bicycle components. (Be honest reader, if you saw that registration, would you open up a bicycle shop named “Café Roubaix” without evaluating the trademark risks?) Nevertheless, comment posters vilified Specialized as a trademark bully. So putting aside the question of whether there is any type of infringement between Specialized’s registered mark and “Café Roubaix,” the Internet tells us that mark owners who fear infringement must investigate the veteran status of the alleged infringer before sending out a cease and desist letter. According to the Specialized case, this is a relevant inquiry under trademark law. By extension of this first rule, one must not assert mark rights against a veteran of the Afghanistan conflict. I have no idea what should happen if the alleged infringer has a blemished military record.

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