Properly Maintaining Your Business’ Corporate or LLC Status

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…)

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Wisconsin District Court Resuscitates Divisibility Defense Under CERCLA?

659_3_2This 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…)

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The Sharp Startup: Why We Don’t Trademark Anything

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…)

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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

fracturingOn 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

imagesCAYCLIKPOn 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

medical_waste_bag_2The 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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