Category: Business Law

Philadelphia Business Lawyers: Conditional Class Certification for Collective Actions

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Getting a conditional class certified in court requires the plaintiff to show by a preponderance of the evidence that the rest of the opt-in plaintiffs were “similarly situated.” In Jarosz v. St. Mary Med. Ctr., PICS Case No. 14-1560 (E.D. Pa. Sept. 22, 2014), an employee claimed she was never properly compensated for performing work during her meal break, and that this was a policy throughout her work. The court decertified the potential class because the circumstances showed this meal break policy was not centralized. Factors such as employees from other departments and positions, as well as the fact that meal breaks were scheduled differently depending on the department, aided the court in reaching its decision.

This court’s decision is important to show that just being employed by the same employer is not enough for additional plaintiffs to opt-in to a class action (collective action) suit. The “similarly situated” standard is focus in this court’s holding. The certification of a class action becomes inappropriate when individual issues would overcome issues that the class as a whole would have.

Philadelphia Employment Lawyers at Sidkoff, Pincus and Green are Experienced in All Areas of Business Litigation including Class Action Lawsuits

Philadelphia Business Lawyers at Sidkoff, Pincus and Green represent clients in all areas of Employment Law, and handle class action lawsuits.  For more information contact us online, or call 215-574-0600.

Philadelphia Business Lawyers: Fraudulent Misrepresentation as a Basis for Punitive Damages

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To establish fraudulent misrepresentation, a plaintiff must prove: (1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation and (5) damage to the party defrauded as a proximate cause. Yenchi v. Ameriprise Fin., Inc., 2015 Pa. Super 195 (Sept. 15, 2015). Scienter, or the maker’s knowledge of the untrue character of his representation, is a key element in finding fraudulent misrepresentation. See Restatement (Second) of Torts § 526, comment a. Fraud must be proven by clear and convincing evidence. Weston v. Northampton Pers. Care, Inc., 62 A.3d 947, 960 (Pa. Super. 2013).

[A] cause of action for misrepresentation can support a claim for punitive damages. However:

Punitive damages will lie only in cases of outrageous behavior, where defendant’s egregious conduct shows either an evil motive or reckless indifference to the rights of others. Punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.il

The Philadelphia Business Lawyers at the Law Firm of Sidkoff, Pincus & Green are Well Versed in all Areas of Business Litigation

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green can help clients affected by fraudulent misrepresentation.  To speak to an experienced lawyer contact us online, or call 215-574-0600.

Philadelphia Business Lawyers: Professional Negligence in Pennsylvania

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When the alleged negligence is rooted in professional malpractice, the determination of whether there was a breach of duty comprises two steps: (1) a determination of the relevant standard of care; and (2) a determination of whether the defendant’s conduct met that standard. Catlin v. Hamburg, 56 A.3d 914, 920 (Pa. Super. 2012). Additionally, in a professional malpractice action, the determination of whether there was a breach of duty requires the plaintiff to show that the defendant’s conduct fell below the relevant standard of care applicable to the performance of the professional services at issue. Merlini ex rel. Merlini v. Gallitzin Water Auth., 934 A.2d 100, 104 (Pa. Super. 2007). “In most cases, such a determination requires expert testimony because the negligence of a professional encompasses matters not within the ordinary knowledge and experience of laypersons.” Id.

 A complaint asserting negligence against a licensed professional must identify each defendant against whom the plaintiff is asserting a professional liability claim. Pa. R.C.P. § 1042.2. “In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff … shall file … within sixty days after the filing of the complaint, a certificate of merit signed by the attorney[.]” Pa. R.C.P. No. 1042.3(a).

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Those Accused of Professional Negligence

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green are experienced in complex litigation and represent clients in all areas of business law, including professional malpractice.  For more information contact us online, or call 215-574-0600.

 

 

Philadelphia Business Lawyers: General Contractor Insurance Policies

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Insurance Companies Not Held Liable for Shoddy Workmanship by Home Contractors under General Contractor Insurance Policies

In Pennsylvania, Courts will not hold insurance companies that provide general contractor insurance policies liable for a contractor’s shoddy workmanship. In Ryan Homes, Inc. v. Home Indem. Co., 647 A.2d 939, 942 (Pa. Super. 1994) the Superior Court held that general liability policies provide coverage for work or product that actively malfunctions “causing injury to an individual or damage to another’s property.”

Further, the insured must assume the risk of the quality of its product and its work, and to hold otherwise “would effectively convert the policy into a performance bond or guarantee of contractual performance and result in the coverage for the repair or replacement of the insured’s own faulty workmanship. This means homeowners who can prove negligence in court will have to attempt to collect from contractors themselves.

 

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Homeowners Whose Property Has Been Damaged by Home Contractors

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green can help if your property has been damaged by a contractor’s shoddy workmanship.  For more information contact us online, or call today at 215-574-0600.

 

 

Philadelphia Business Lawyers: Copyright Claims and Unauthorized Copying of Copyrights

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In order to have a claim for copyright infringement, the plaintiff must show: (1) that they have a valid copyright and (2) that the original elements of their work were copied, without their authorization. To file a claim under the Federal Copyright Act, federal registration must first be acquired.  A plaintiff can satisfy the first element, a valid copyright, by showing that the work is original and that they are the author of the work or by producing their federal copyright certificate if they already federally registered their copyright.

Unauthorized copying can be shown with direct evidence of copying or indirect evidence of copying.  When using indirect evidence of copying the plaintiff must show that the defendant had access to the plaintiff’s work and that the works are substantially similar.  Substantial similarity may be shown by lay witness testimony or expert witness testimony.  Additionally, the aspects of the works that are substantially similar must be protectable elements of the work.  The author’s express of their idea is protectable but the actual idea or theme itself is not protectable.

For more information, call Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Internet Harassment and Defamation

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Section 230 of the Communications Decency Act

Under both statutory and judge made law, a person cannot be held liable for posting on the Internet a hyperlink to, or repeating a quote authored by another person that was published on a website, regardless of the content; and the immunity from defamation claims afforded such users of the Internet is absolute.  See Section 230 of the Communications Decency Act of 1996, 47 U.S.C. § 230.

In Barrett v. Rosenthal, 40 Cal. 4th 33 (2006), the Court ruled that a user of interactive computer services was immune from defamation liability for posting information passed to her by a third-party publisher. In Barrett, Plaintiff sued Defendant for republishing what she considered was a defamatory email onto a third party website. The Supreme Court held that Defendant was a “user” as defined by the Communications Decency Act, and therefore did not re-publish content for the purposes of bringing a defamation claim. Rather, the Supreme Court told Plaintiff that she would have to sue the originator of the defamatory Internet publication.

Further, “subjecting Internet service providers and users to defamation liability [for third-party published content] would tend to chill online speech”. ); Zeran v. America Online, Inc., 129 F.3d 327, 331–33 (4th Cir. 1997).

For more information, call Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Piercing the Corporate Veil

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In Pennsylvania, a corporation is considered a distinct entity from its shareholders.  Under certain circumstances a court will pierce the corporate veil of a corporation and hold the shareholders personally liable for the corporation’s debts.  A strong presumption against piercing the corporate veil exists in Pennsylvania. However, in limited circumstances the court will allow it.

In Lumax Industries, Inc. v. Aultman, the Pennsylvania Supreme Court articulated factors to consider when determining whether to pierce the corporate veil.  The court should consider whether the corporation is undercapitalized, whether it adheres to the corporate formalities or not, whether substantial commingling of corporate and personal affairs is occurring, and whether the corporation is being used to commit a fraud.  In such circumstances the court may, as a matter of equity, pierce the corporate veil and hold the corporation’s shareholders personally liable for the corporate debt at issue.  However, the party seeking to have the corporate veil pierced has the burden of proving, by clear and convincing evidence, that the veil should be pierced.

For more information, call Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Abuse of Process – When Parties Submit Frivolous Filings to Delay Litigation and Increase Costs

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The word “process” as used in the tort of abuse of process “has been interpreted broadly, and encompasses the entire range of procedures incident to the litigation process. Rosen v. American Bank of Rolla, 627 A.2d 190, 192-193 (Pa. Super. 1993).

To establish a claim for abuse of process in Pennsylvania it must be shown that the party: (1) used a legal process against the other party, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the other party. Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. 2008). “[C]ourts have consistently held or assumed that plaintiffs asserting a claim under Pennsylvania law for abuse of process that arises out of an underlying civil case need only establish the three common elements described above”. Langman v. Keystone Nat ‘1 Bank & Trust Co., et al, 672 F. Supp.2d 691, 700 (E.D.Pa. 2009). A plaintiff asserting an abuse of process claim does not have to show that the underlying proceedings terminated in his favor. Id., at 701; Lerner, 954 A.2d at 1238.

For more information on abuse of process, contact Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Craigslist Copyright Lawsuit

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A long-standing case between Craigslist and 3taps has finally been resolved. The two companies came to a settlement agreement for one million dollars that Craigslist will be donating to the Electronic Frontier Foundation (EFF) over the next decade. Additionally, 3taps will be shutting down.

Trademark Infringement, Unethical Competition and Breach of Contract

Craigslist sued 3taps, as well as another company, PadMapper, in July 2012, claiming that both companies were guilty of copyright infringement. PadMapper took the data Craigslist had for apartment listings and created its own site that was easier to use, while 3taps took other Craigslist postings and published them on third-party websites. In addition to copyright infringement, PadMapper and 3taps were also accused of infringing on the Craigslist trademark, unethically competing with Craigslist and breaching Craigslist contracts.

Countersuit Filed

In late 2012, 3taps filed a countersuit against Craigslist, opening the door to a legal battle that lasted nearly three years. 3taps countered that Craigslist had effectively created a copyright infringement trap by their practice of selectively obtaining copyright assignments and registrations in some user-generated posts, but failing to inform visitors which posts its own.

The recent settlement fully resolves each lawsuit. The one million dollars that 3taps will pay to Craigslist will help support the EFF, which will receive $100,000 a year for 10 years, and 3taps will no longer be allowed to operate.

Copyright Litigation Trap Questions Remain

There is still debate regarding the question of legality for private enterprises which operate public websites and attempt to exclude certain visitors, while at the same time exposing the excluded visitor to civil and criminal liability through use of the Computer Fraud and Abuse Act.

Philadelphia Copyright Infringement Lawyers at Sidkoff, Pincus & Green Represent Trademark Infringement, Breach of Contract and Business Litigation Claims

Certain types of small businesses and websites that source their data from other systems may be exposed to the potential of being targeted in lawsuits filed by the original source company or website. If you are being sued over copyright infringement or are considering filing a lawsuit of your own, our Philadelphia litigation lawyers can help. We can consult on how to avoid trademark litigation and offer legal counsel on how to pursue a trademark violation claim if one is warranted. At Sidkoff, Pincus & Green, we are skilled in breach of contract and copyright infringement litigation and will pursue your case until we reach a viable outcome or settlement. Please call 215-574-0600 or fill out an online contact form today to schedule your consultation.

Philadelphia Business Lawyers : Significant Trademark Ruling in 9th Circuit

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Amazon, the online marketplace giant, recently lost an important court case. The 9th Circuit U.S. Court of Appeals ruled that the company will be subject to an ongoing trademark lawsuit, which was instigated by Amazon’s publishing of competitors’ list prices. A lower court originally ruled in Amazon’s favor in the case.

Multi Time Machine v. Amazon.com involves Multi Time Machine (MTM), a watchmaking company that filed suit against Amazon for “confusing search results.” Consumers who search for “MTM Special Ops” on Amazon do not actually see the MTM product they are searching for because Amazon does not sell the product. Instead, the search engine provides a list of competitors’ watches that are sold by Amazon. Consumers may be aware the product they are trying to purchase does not come from MTM, but could also think they are purchasing an MTM product since the search results page displays “MTM Special Ops” at the top of the page.

Ruling Not an Automatic Victory

The ruling does not automatically grant MTM a trademark victory. The case will return to court wherein MTM must prove that Amazon intentionally caused this confusion. A judge from the majority ruling said that a jury should have the opportunity to make the final decision. “A jury could infer that users who are confused by the search results will wonder whether a competitor has acquired MTM or is otherwise affiliated with or approved by MTM,” he said.

A dissenting judge disagreed saying that online consumers are knowledgeable enough to understand the difference. He equated the search engine results to a waitress offering a diner Pepsi because it does not serve Coca Cola.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green Represent Trademark Infringement Claims

As technology continues to evolve, laws must also be changed to keep up with technology’s fast pace. Across the nation, trademark law is in flux. If you think that an individual or company has violated your trademark or marketed your product in violation of fair trade laws, contact a Philadelphia trademark lawyer at Sidkoff, Pincus & Green today. Please call 215-574-0600 or contact us online to schedule your consultation.