The Illinois Business Law Journal

The Sophisticated User Doctrine: Fair or Fowl

Introduction

Keith Wilson is a well trained ventilation and air conditioning (HVAC) technician. [1] Trained both on and off the job, Mr. Wilson had the highest certification available from the Environmental Protection Agency ("EPA"), a training that required passing a five-part examination. [2] His qualifications allowed him to purchase, braze, weld and replace parts on large commercial air conditioning systems. [3] These air conditioning systems use R-22, a hydrochloroflourocarbon refrigerant that can decompose into phosphane gas when exposed to heat, as is often the case when a technician brazes or welds an air conditioning system. [4] Exposure to phosphane gas and R-22 can cause numerous health problems which are detailed in Material Safety Data Sheets (MSDS's). [5] The California code requires employers to use the MSDS's to train their employees about the chemicals and dangers they can be exposed to on the job. [6] Mr. Wilson received a MSDS every time he purchased R-22 and he even read it on occasion. [7].

After years of being exposed to R-22, Mr. Wilson developed pulmonary fibrosis and sued the chemical manufacturers, suppliers and air conditioning unit manufacturers including the defendant, American Standard, Inc. [8] His contention was that the companies failed to adequately warn him of the dangers of being exposed to R-22. [9] The defendant moved for summary judgment claiming that it had no duty to warn to Mr. Wilson of the dangers of R-22 and as a professional HVAC technician, he should have known of the dangers of the chemical. [10] On appeal, the California Supreme Court agreed with the defendant reasoning that Mr. Wilson was a sophisticated user, one who knew or should have known of the dangers of being exposed to R-22, and as such, the manufacturer/distributor should and will be held blameless for exposing him to the chemical. [11]

Enron and Citigroup Settle: MegaClaims Litigation Comes to an End

I. Introduction

In late March Enron Creditors Recovery Corp. ("Enron") settled its latest and final MegaClaim against Citigroup, the largest bank in the U.S. [1] Citigroup agreed to pay $1.66 billion to Enron over its alleged responsibility in Enron's downfall. [2] In addition, Citigroup is releasing $4.25 billion in claims against the Enron estate, including a $4 billion claim reserve established by the U.S. Bankruptcy Court for the Southern District of New York. [3] Citigroup denied any wrongdoing in its dealings with Enron, but stated that it settled solely to avoid the expense and uncertainty of litigation. [4] Trial was set to start in April. Initially, Enron had sought $3 billion from Citigroup, alleging that number represented the amount fraudulently transferred by Enron to Citigroup. [5] Enron contended that Citigroup, in particular, played a central role in its collapse. [6]

Ambiguity In Contemporary Money Laundering Statutes

I. Introduction

At the end of last year, the United States Supreme Court granted a petition for writ of certiorari for the appeal of convicted felon Humberto Fidel Regalado Cuellar. [1] The Court's ultimate decision in the case of United States v. Cuellar will be of immense importance, and can have far reaching effects. The Cuellar case will allow the United States Supreme Court to give lower courts guidance in the proper interpretation of current statutes criminalizing money laundering. Currently, a plethora of crimes are in the penumbra of money laundering charges. Such aggressive interpretation and application of money laundering charges is troubling in light of its original purpose. Clearly, much has changed since the passage of the 1970 Bank Secrecy Act "BSA". [2] Furthermore, the meaning of money laundering has expanded to "cover almost any financial crime", and marks a far departure from its original conceptualization. [3] Should the Court affirm Cuellar's conviction and potentially allow prosecutors "unfettered discretion to go after anyone who touches dirty cash?" [4] On the contrast, should the Court return money laundering charges to the intent of the 1986 Congress that moved to criminalize the act of money laundering?

Corporate Social Responsibility in China: Can Consumers Alter Inadequate Legal Enforcement?

Introduction
Competitive advantages direct the trend toward international business and multinational corporations. [1]. Interestingly, a situation may arise where multinational corporations are not subject to international laws because they do not have the requisite international legal personality, not subject to host country laws because they do not directly control workers there, and are sparingly regulated by their home countries. [2].
In China, workplace conditions are grisly. Over 126,000 workers died in 2005 as China had the highest illness and injury rate in world history. [3]. This harms everyone from workers in China to the U.S. economy who is short between 500,000 and 1 million manufacturing jobs due to cost advantages gained from quashing Chinese workers’ rights. [4]. And perhaps it affects the products put out by Chinese manufacturers. A series of recalls, many involving children’s toys, recently shifted the spotlight toward Chinese factories and raised concern over safety standards and corporate accountability abroad.

The Business of Law: Increased Recruitment and Declining Retention

I. Introduction    
    
    Since 1986, the number of lawyers working at American Lawyer (“Am Law “) 100 firms has tripled, and part of that growth is due to the expansion of associate recruitment and hires. [1] With the increased competitiveness, employers search all over the nation to hire and retain the best and the brightest second and third-year students. [2] In 1975, in an opinion written by Chief Justice Burger, he notes that the practice of law is a business; “it is no disparagement of the practice of law as a profession to acknowledge that it has a business aspect.” [3] Today that statement still holds true. Burger continues by noting that the “forms of competition usual in the business world may be demoralizing to the ethical standards of a profession.” [4] It should not be a surprise that the fields of law and business fields are closely intermingled; indeed, by nature, a law firm is a business and a lawyer is a businessperson. Even though recruiting is only one aspect of legal management, it is one of the most important tasks that contributes great to staying competitive in the global marketplace. [5] Mayer, Brown, Rowe & Maw (“Mayer Brown”) former managing partner, Debora de Hoyos says recruiting “is essential to the firm’s success and commands an incredible investment of resources”. [6]

Are Your Gift Cards Safe?

I. Introduction

On February 19th, 2008 the specialty retailer Sharper Image filed for bankruptcy under Chapter 11 and announced that it would no longer be accepting its gift cards. This came as a shock to consumers, who suddenly found their holiday gift cards worthless. "'That is typical of businesses that reorganize under Chapter 11 bankruptcy, which treats gift cards as a loan to the company, not as cash.'" [1] Chapter 11 allows for an automatic stay of recovery for any claim against the debtor that arose before the filing of the bankruptcy claim. [2] In response to this announcement, C. Britt Beemer, chairman of America's Research Group, projected that this would greatly affect Sharper Image's future. "'You will see a lot of frustration among customers. You basically stole [money] out of the customers' pocket. They will never forgive you.'" [3]

Google-Doubleclick Merger: Consolidating Online Advertising Amidst Antitrust and Privacy Concerns

Introduction

After one year of red tape, the recent EU approval of the Google-Doubleclick merger finalizes a deal certain to change the current landscape of online advertising. [1]. Despite antitrust and privacy concerns, the merger was approved upon reasoning that (a) Google’s market of internet search technology does not directly compete with Doubleclick’s market of online advertising; and (b) the issue of privacy is not properly addressed by antitrust hearings. [2]. With the acquisition, Google becomes the heavy frontrunner in internet search and online advertising, a booming market expected to be valued at $60 billion by 2011. [3]

Worst. Journal Article. Ever.

I. It's All in Good Taste

Recently, Northern Island’s Court of Appeal overturned a jury’s decision to award £25,000 to a pizzeria in Belfast in a defamation suit.[1] In this particular case, Irish News restaurant critic Caroline Workman wrote a highly critical article of Goodfellas pizzeria, which resulted in the pizzeria filing a defamation suit against Irish News,[2] While a jury found in favor of Goodfellas, awarding the pizzeria £25,000, Northern Ireland’s Court of Appeal ordered a retrial after finding the instructions to the jury were confusing regarding the distinction between fact and comment.[3]

Cases like this have happened in the United States and continue to happen today. While the differences between law in the United States and law in Northern Ireland are multifarious, both nations have been faced with the complicated legal issue of how to deal with restaurants bringing defamation suits against their critics. U.S. courts must delicately balance considerations ranging from the First Amendment to the legitimate harm defamatory reviews can have on innocent restaurants. This article will examine how United States courts have dealt with this problem. It will also weigh both sides of this issue while commenting on the importance of free speech for critics.

Should Complex Corporate Litigation Trials be Left to the Juries?

     Corporate litigation disputes are becoming more complex as new issues arise addressing questions on statistical and/or probabilistic facts, expert testimonies, and other intricacies of the business world. This trend in litigation poses a new issue to the courts, and, more specifically to the juries. With these issues becoming more complicated, one can only wonder if lay jurors are able to understand the disputes, judicial instructions, and are capable of applying the facts to the law.

Law Firms: It’s Getting Easier to Be Green

I.    Introduction

The current surge in environmental awareness is affecting the way our nation does business, across a variety of industries. [1]  The United Nations Intergovernmental Panel on Climate Changes has come to the unequivocal conclusion that our planet is getting hotter, and former Vice President Al Gore’s popular documentary on global warming has helped to create awareness about environmental issues. [2]   Beyond any altruism towards the environment, law firms are discovering that like any other business, they can ultimately profit by taking steps that benefit the environment. [3]  This article explores the legal industry's negative impact on the environment, and examines the nature and origin of the sustainability, or “green,” movement throughout law firms today.