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]

Home Is Where the Most Economically Beneficial Laws Are: Finding the Best Location to Incorporate Your Business

I.  Introduction

There are very few requirements for a business to be incorporated in a given state.  The business must usually have a registered agent in that state, but rarely are there requirements to construct an office or actually engage in commercial transactions. [1]  From the outset, it seems as though finding the best location to incorporate a business would be quite simple.  This prediction, however, could not be farther from the truth.  Finding the right place to "set up camp" is a long and crucial process; but if done properly, the initial research can lead to the creation of a business that uses state law to its advantage rather than demise.

Is Your Ad Deceptive?

I. Introduction   

Small business owners often take out an advertisement in a local paper or, more in line with the times, advertise on a website.  The advertisement, however, can sometimes create liability for the business owner if the ad is found to be deceptive. [1]  This article will discuss the different sources of the law regarding deceptive advertising and then generally describe what makes an advertisement deceptive.  It will then explore the trends and adaptation of the law regarding web logs and advertising.  In conclusion, this article will present considerations that a small business owner should take into account when deciding to post an advertisement.

Is a Frachise for You? Making the Right Decision on Starting a Franchise

I. Introduction

Starting a franchise can be a lucrative business. However, franchising is also an expensive start-up venture and can have significant legal consequences if not done properly. This article will first define a franchise and discuss the different types. It will then discuss financing a franchise and the legal issues of starting a franchise. Finally, the article will conclude by discussing the best way to go about starting a franchise.

Lawyer-Turned-Entrepreneur: How the Collision of Diverse Careers can Blend into Success

I.  Introduction

    At first glance, it looks as though lawyers and entrepreneurs don't have much in common.  The legal profession "offers a low-risk (if high-stress) means to a long, relatively well-paid, and tightly-controlled career at a privately-held law firm or government position." [1]  The path of an entrepreneur, on the other hand, offers a high-risk means to a career with no guarantees or definite returns on investment. [2]  Yet, more than ten percent of the CEOs in the Forbes 500, a list of the 500 largest public companies in the United States, are former lawyers. [3]  How did this happen?  According to Gregg Engles, former lawyer and current CEO of Dean Foods, Inc., the discrepancy is simple. [4]  "Many lawyers let knowledge of risk paralyze them.  They focus exclusively on risk, while entrepreneurs focus primarily on opportunity.  The person who can simultaneously perceive the opportunity and the risk has a competitive advantage." [5]

Let Franchisees Decide to Arbitrate

I. Introduction

     Franchises are a strong component of the U.S. economy.  In 2004, there were over 767,000 franchises in the United States which contributed 9.8 million direct jobs to the economy. [1]  According to a 2002 study, half of the franchise agreements analyzed contained arbitration clauses. [2]  With the passage of the Federal Arbitration Act and subsequent court rulings, a policy favoring arbitration has been established. [3]  In fact, most courts will enforce arbitration clauses in a majority of the cases. [4]  In contrast to this trend, both congressional legislation and court decisions have been seen to back away from an unwavering support of pre-dispute arbitration.  Should the courts and congress become more involved in the use of arbitration in the context of a franchise relationship?

Liability Protection: The Keystone of a Successful Business

I. Introduction

For an entrepreneur, starting a new business can be a fulfilling venture. However, if the company and its assets are not properly protected, the risks that come along with such an endeavor can prove to be costly. This article will first discuss the agency issues that arise in a litigious society. It will then explain the process for retaining liability insurance. Finally, it will conclude by suggesting some simple ways a new business owner can ensure he or she will receive maximum liability protection.

The Young and the Restless: the Inevitable Trend of New Graduates towards Solo Practice

I.    Introduction

The word is out--as of 2007, big law firms have boosted their starting salaries to as high as $160,000. [1]  Moreover, NALP has released its employment statistics for the Class of 2006, boasting a 90% employment rate for new graduates. [2]  If these statistics sound too good to be true, it's because they are.  The much publicized "BigLaw" salary only accounts for 14% of new-graduate salaries. [3]  In fact, 42% of new graduates last year received less than $55,000. [4]  What does this mean?  It means that graduates, who don't attend top-tier law schools and don't score at the top of their class, are struggling to find jobs that will cover both living expenses and law-school debts; which can exceed well over $100,000.  With job prospects looking grim, many recent graduates are turning to solo practice, hoping to create the dream career and salary that nearly dissolved when reality first set in.

Zoning Regulations Need to Keep Pace

     Many Americans take the plunge and start a small business.  The predominant form of small business in the united States is home-based business. [1]  Nearly 8,500 new home-based ventures are started each day with one in ten U.S. households conducting some type of home-based business. [2]  Although many local zoning regimes started with the same intentions they have led to varying restrictions which may not appropriately balance the concerns of neighbors against the benefits and characteristics of all current home-business.

The Mail-Order Bride Phenomenon

IN A WORLD OF RISING GLOBALIZATION HOW DO THE LAW AND INDUSTRY GENERATE SAFE OPPORTUNITIES FOR PEOPLE TO MEET ONLINE IN DIFFERENT NATIONS?

Contrary to popular depiction in the media and amongst the populace of western countries, the idea of a ‘mail-order bride’ no longer exists in the classical sense; in the 18th and 19th Centuries, women such as the ‘casket girls’ of New Orleans were often ordered through catalogs or sent to colonies by their Governments to marry settlers and maintain the harmony and prosperity of the colony. [1] Nowadays, the term generally refers to women from developing countries that use introduction services such as Anastasia International ( HYPERLINK "http://anastasia-international.com" http://anastasia-international.com) to meet and possibly marry men in first world countries. [2] The common misconception, at least with regard to women in the Commonwealth of Independent States (the former Soviet Union), is that they are coming to this country to escape political or economic turmoil in their own. [3] The following article will dispel the myth of the ‘mail-order bride’ and explain the legal concerns regarding safety and security for both men and women looking to meet someone internationally.