Philadelphia Employment Lawyers: SEPTA Claim

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Court Rejects Appeal by Former SEPTA Worker on Claims for Hostile Work Environment and Discrimination

On August 8, 2016, the U.S. Court of Appeals for the Third Circuit denied the appeal of former SEPTA employee Marie Selvato, who sued SEPTA after she was seen at a taping of “Live with Kelly & Michael” while on sick leave. Selvato brought an action against former employee SEPTA for hostile work environment and discrimination. Selvato claimed she was sexually harassed between 2004 until she was terminated. Selvato’s claims were dismissed last year when U.S. District Judge Wendy Beetlestone of the Eastern District of Pennsylvania granted summary judgement to SEPTA, finding that she failed to show a connection between her termination and sexual harassment allegations.

Pennsylvania law requires claimants to first file a hostile work environment claim with the EEOC which requires that claims must be filed within 300 days of unlawful employment action. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013). The trial court ruled that most of Selvato’s claims fell outside of this 300 day window. Selvato’s claims stemmed from instances of alleged sexual harassment between 2004 and 2012. However, a majority of the instances occurred between 2004 and 2009. Selvato claimed her supervisor James Stevens made two remarks within the 300 day window that rise to the level of sexual harassment. Stevens told her that he was “stalking her Facebook pictures” because he had gone to school with Selvato’s sister. He also told Selvato that he would like to “pet” a flower on her blouse because it looked soft. The Eastern District granted summary judgment against Selvato, which she subsequently appealed.

To make a hostile work environment claim, Selvato had the prima facie burden of proffering evidence to show the following elements: “1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability.” Mandel, 706 F.3d at 165. The Court of Appeals agreed with the lower courts conclusion that these comments, though offensive, did not rise to the level of physical threat necessary to establish a prima facie hostile work environment claim. The Court of Appeals affirmed the dismissal of the discrimination claim as well citing lack of evidence and pure speculation by Selvato. 

Selvato v. SEPTA, No. 15-3686, 2016 U.S. App. LEXIS 14524 (3d Cir. Aug. 8, 2016)

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

Philadelphia Business Lawyers: Pharmaceutical Drug and “Product Hopping”

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The Third Circuit recently ruled that certain changes to a drug made by a pharmaceutical company did not constitute “product hopping” and therefore did not violate federal antitrust laws. Product hopping occurs when a pharmaceutical company makes insignificant and non-substantive changes to a drug with the intent to thwart other companies from creating generics of the drugs. This creates a type of monopoly in the market that the federal  antitrust law, the Sherman Act, is designed to prevent.

A previous case in New York’s Second Circuit courts was decided in opposition to this case, wherein the court determined on summary judgment that antitrust laws were violated. The Third Circuit said that the previous case in New York was different since discovery was conducted and it could look more closely at whether the thresholds under the Sherman Act were in fact met.

The Third Circuit case, Mylan v. Warner Chilcott, analyzes whether Warner Chilcott violated the Sherman act by possessing monopoly power in the market and whether it acquired this monopoly power “by means other than superior product, business acumen, or historic accident” which is commonly known as “anticompetitive conduct.”

Determining if a Drug is Generic

It is important to note that in order for a drug to be considered by the FDA as a generic, it must be bioequivalent to the brand name drug and it must match the dosage, strength, and form. In this case, Mylan alleged that Warner Chilcott changed the form from capsule to tablet and also the dosage of the drug on a frequent basis in order to avoid other companies from developing generics.

Here, the Third Circuit found it important that Warner Chilcott’s changes to the drug did not bar or restrict Mylan from occupying a place in the market. Additionally, the court broadened the definition of the marketplace from Mylan’s arguments and found that Warner Chilcott’s share of the market never exceeded 18 percent and therefore did not constitute a monopoly. Mylan defined the market in this instance to include only the drug Doryx, which is a tetracycline drug, and more specifically a delayed release doxycycline hyclate used to treat acne. The Court determined that the market encompassed all tetraclycline drugs used to treat acne, and not just Doryx. Additionally, the Court pointed out that Mylan earned sizeable profits from a generic Doryx drug in tablet form when Doryx was sold as a tablet.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Work to Uphold Antitrust Laws

If your company has an antitrust legal issue, contact the Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online to discuss your options. Our firm has extensive experience representing clients in complex business law. We represent clients throughout the greater Philadelphia area, including New Jersey.

 

Philadelphia Business Lawyers: Rainbow Apparel Legal Fees Lawsuit

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Recently, the named partner of a small law firm, Michael Kimm, and co-plaintiff Rainbow Apparel, brought a lawsuit against KCC Trading, Inc. and several individual defendants, alleging that defendants failed to pay them rightfully earned legal fees. The trial court dismissed Kimm’s case, and the appellate court affirmed, on grounds that requiring clients to pay their attorney to sue themselves constitutes as unlawful fee shifting.

KCC and Rainbow Apparel had entered into a multi-million-dollar business venture together. KCC was to supply the financing for Rainbow’s business ventures. In October 2009, KCC retained Kimm’s law firm. They agreed upon a rate of $400 per hour for work performed by Kimm himself, and $250 an hour for work performed by Kimm’s associates. In addition to these fees set forth in the retainer agreement, KCC also agreed to pay the Kimm Law Firm $15,000 a month on a rolling basis, beginning on October 15, 2009. The contract setting forth the fee arrangement also included indemnification and termination clauses.

KCC fired Kimm in April 2010. Kimm then sent KCC the billing statements from October 2009 through March 2010, which totaled nearly $50,000. Then, several months later, Kimm sent KCC a second bill, charging the company over thirty thousand dollars for hours expended litigating against KCC to collect the unpaid legal fees.

An Unenforceable Clause

Kimm sued KCC on grounds that they had breached their contract. They also sued for quantum meruit (reasonable value of services), payment on the basis of account stated, and unjust enrichment. Kimm moved for summary judgment, but the trial court denied his motion. The trial court judge dismissed Kimm’s claim for the $30,000 incurred as a result of the fee litigation. The court reasoned that the indemnification clause was unenforceable because it violated public policy. The trial court also reduced the $50,000 sought by Kimm, finding that the bill was unreasonably high.

Kimm appealed, but the appellate court affirmed the trial court’s dismissal regarding the $30,000 fee. The court noted that requiring clients to pay their attorney to sue themselves constitutes unlawful fee shifting. The appellate court also upheld the reduction of the $50,000 fee as unreasonable.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Have Experience Litigating Indemnification Clauses and Breach of Contract

If you are involved in a contractual dispute, the Philadelphia business lawyers at Sidkoff, Pincus & Green has the experience to handle your case swiftly and effectively. To schedule a consultation with one of our reputable attorneys, call us at 215-574-0600 or contact us online today.

Philadelphia Employment Lawyers: Non-Solicitation Verdict Upheld

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Recently, a Pennsylvania appellate court upheld a $6.9 million verdict for an insurance brokerage firm that sued several former employees who violated their non-solicitation contracts. The employees allegedly tried to lure clients to a competing agency.

Things began when two executives at Balmer began considering launching a new Philadelphia office for competing firm Frank Crystal & Co. (“FCC”). Just one month after these discussions began, the Philadelphia FCC branch opened with three Balmer employees at the helm. The Balmer employees purportedly worked on transitioning to their new positions while on agency phones, computers, and time. One employee allegedly compiled a list of Balmer clients and other trade secrets. Ultimately, the Philadelphia branch of FCC solicited at least twenty-four Balmer clients. One of these clients had been with Balmer for over 25 years and was one of the agency’s biggest.

Balmer sued both FCC and the former employees, seeking damages for breach of fiduciary duty, tortious interference, unfair competition, conspiracy, and other violations. A Chester County judge awarded Balmer $2.4 million in compensatory damages and $4.5 million in punitive damages.

An Undeniable Breach in Contract

The defendants appealed to the Superior Court, urging that the punitive damages be struck, as there was no evidence of outrageous conduct. The court did not agree, finding ample evidence to support the punitive damages. Specifically, the court noted that FCC knew about the Balmer executives’ non-solicitation contracts, yet courted them anyway. Furthermore, the employees had provided FCC with privileged, protected information about Balmer clients.

The court relied on an earlier case wherein a radio station manager solicited members of his sales staff to join him in his move to a competing station. They also persuaded an advertising client to follow them to their new employer. Even though the two cases are distinguishable in that one deals with a covenant not to compete, and the other deals with non-solicitation contracts, the conduct was similar in both.

In ruling against FCC, the court found that when a company hires the entire marketing and sales staff from one agency, the sole purpose is clearly to induce clients of that agency to keep their accounts with with the sales force that is switching agencies. FCC Philadelphia earned approximately $300,000 its first year, all from Balmer Agency clients. The court upheld the punitive damage award.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Counsel on Non-Solicitation Contracts, Non-Compete Agreements

Whether you are trying to craft a solid employment contract, or whether you need an experienced, aggressive team of litigators to handle a claim of breach of contract, the highly regarded Philadelphia employment lawyers at Sidkoff, Pincus & Green are prepared. We take pride in developing successful relationships with our clients. Contact us online or call our offices at 215-574-0600 to speak with a Philadelphia business lawyer.

South Jersey Employment Lawyers: Refusing Flu Shot Results in Lawsuit

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The Equal Employment Opportunity Commission (EEOC) recently brought a lawsuit against a hospital in Erie, Pennsylvania for religious discrimination after it fired six employees based on their flu shot refusal due to religious beliefs.

In this case, the EEOC claims some employees were granted religious or medical exemptions from the flu shot, but that six employees were denied a religious exemption from the shot despite their requests. Nowadays, it is commonplace for healthcare facilities to mandate that all employees obtain a flu shot to minimize the spread of the flu in medical facilities.

Under Title VII of the Civil Rights Act of 1964, employees cannot be discriminated against based on a “sincerely held” religious belief, and the religion does not necessarily have to be a widely recognized or organized one. Under the law, the belief must only be “sincerely held” by the individual.

In this instance, the employees claimed that they belonged to a variety of Christian faiths, such as Russian Orthodox, Methodist, Independent Fundamentalist Baptist, and Christian Mysticism. The hospital’s main defense is that the employees did not provide adequate proof regarding their religious beliefs. The hospital’s policy requires certification by a clergy member regarding the religion prior to approving an exemption.

Religious Discrimination is Not Uncommon

The EEOC has brought other claims throughout the country when employees were wrongfully terminated over religious refusals to the flu vaccines in a healthcare setting. For example, the EEOC brought claims when employees have filed for exemptions after what it called “an arbitrary deadline” and also when an employee allegedly could not be understood when she wore a mask over her mouth in lieu of getting the flu shot.

In these types of religious discrimination cases, the employee must show a sincerely held belief and a religious reason as to why they refuse the flu shot. Additionally, the employees will need to demonstrate that they requested an accommodation or exemption from the flu shot prior to the discriminatory action or termination. The employee has to show that there is no undue hardship on the employer when it grants an accommodation, or in this case, an exemption from its requirement that all employees obtain seasonal flu shots each year.

South Jersey Employment Lawyers at Sidkoff, Pincus & Green, P.C. Represent Employees in Wrongful Termination Suits

If you or someone you know was discriminated against at work as a result of religious beliefs, or wrongfully terminated, call the South Jersey employment lawyers at Sidkoff, Pincus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Employment Lawyers: Non-Solicitation Award

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Superior Court of Pennsylvania Upholds Non-Solicitation Agreement, Awards $6.9 Million in Damages 

On October 7, 2016 the Superior Court of Pennsylvania handed down a ruling upholding the legality of non-solicitation agreements and awarded millions of dollars in damages. In B.G. Balmer & Co. Inc. v. Frank Crystal & Company Inc., et al, 2016 PA Super 202 (Pa. Super. 2016). Plaintiff Balmer sued to former employees as well as their new employer, Frank Crystal. The former employees began planning to work for Frank Crystal six months prior to leaving Balmer. Although they had signed non-solicitation agreements with Balmer, the defendant employees worked with a recruiter during this time and gave up valuable information about Balmer, such as trade secrets and client lists. During their first year at Frank Crystal, the defendant employees generated revenue solely on former Balmer clients, and managed to bring Balmer’s largest client over to Frank Crystal. As a result of the defendant employees’ actions, Balmer lost its client base and had to be sold.

Balmer sued the former employees and Frank Crystal, alleging violation of their non-solicitation agreements, breach of fiduciary duty, tortious interference with contractual relations, unfair competition and other claims. The trial court ruled in Balmer’s favor for a majority of the claims, assessing $2.4 million in compensatory damages and $4.5 million in punitive damages. Defendants appealed the award of punitive damages, but the Pennsylvania Superior Court affirmed the lower court’s ruling and found their conduct egregious enough to warrant a large award.

For more information, call the Philadelphia employment lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Employment Lawyers | Uber Minimum Wage Complaint

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EDPA Denies Uber’s Motion to Dismiss Complaint for Failure to Pay Minimum Wage

On October 7, 2016, Judge Michael Baylson of the Eastern District of Pennsylvania denied Defendant Uber’s Motion to Dismiss a Complaint filed by Uber drivers suing Uber over its failure to pay minimum wage. Plaintiffs brought the Complaint on behalf of all Philadelphia UberBlack drivers. Razak v. Uber Techs., Inc., No. 16-573, 2016 U.S. Dist. LEXIS 139668 (E.D. Pa. Oct. 7, 2016)

The Court agreed with Plaintiffs that they were misidentified by Uber as independent contractors.  The Court ruled in favor of Plaintiffs by classifying them as employees under the FLSA, subjecting them to the Federal Minimum Wage standards.

Plaintiffs allege that Uber failed to pay them the minimum wage of $7.25 per hour, as required by the FLSA. In response, Uber claimed that Plaintiffs’ Complaint was insufficient because they failed to identify their pay rates and waged earned in a work week. Judge Baylson responded in his opinion that under the FLSA the employers are supposed to keep records of the work week information for employees. Judge Baylson further explained that while this was a close case because Plaintiffs did not specifically provide weeks where their wage fell below the Federal minimum wage, there was enough evidence to provide a reasonable inference to the court that Plaintiffs were not paid minimum wage. Specifically mentioned was the fact that Uber automatically deducts certain expenses each week regardless if the driver earned enough money to cover these expenses. Therefore, Uber’s Motion to Dismiss was denied and further proceedings will commence.

For more information, call the Philadelphia employment lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Trial Lawyers: Judge Halts Rideshare Services

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On October 6, 2016, Judge Lisa Carpenter of the Philadelphia County Court of Common Pleas granted a preliminary injunction requiring that rideshare services such as Uber and Lyft cease operations in Philadelphia. Judge Carpenter ruled that these services, known as transportation network companies, (“TNCs”), violate the Americans with Disabilities Act and Philadelphia’s Fair Practices Ordinance.

The original Complaint was filed by a number of plaintiffs, including Rob Blount, the head of the Taxi Workers Alliance. The Complaint alleged that the companies discriminate against disabled riders because there are no requirements to ensure vehicles can accommodate wheelchairs or protections against refusing to allow service animals, as well as no protection against unfair pricing. In September, Blount amended the Complaint, alleging the Philadelphia Parking Authority violated the equal protection clause of the Constitution by not subjecting TNCs to the same “limitations, assessments, vehicle inspections, or driver requirements.”

If the TNCs violate the injunction, Uber and Lyft could be held in contempt of court.

For more information, call the Philadelphia business lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Qualified Immunity

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Teacher Denied Qualified Immunity After Allowing Child to Leave School With Stranger

A Philadelphia kindergarten teacher, Reginald Littlejohn, was denied qualified immunity in an action alleging that he violated the Fourteenth Amendment rights of a student. Littlejohn allowed the child to leave with a stranger and the stranger then sexually assaulted the child. The stranger was later identified as Christina Regusters. Littlejohn asked for Regusters’ identification as per district policy, however, no ID was produced, and Littlejohn allowed the child to leave with Regusters. Regusters was subsequently convicted and sentenced to 40 years to life for kidnapping and sexual assault. The parents of the child filed a civil suit against Littlejohn in his individual capacity. They did this under the state created danger theory exception to the Fourteenth Amendment’s general rule that the Due Process Clause imposes no liability on states to protect citizens from harm. The parents prevailed and Littlejohn appealed.

Judge Fuentes of the Third Circuit upheld the lower court’s decision that Littlejohn could be held liable to the student. Fuentes went on to explain that while qualified immunity is important for public officials, like teachers, to be shielded from civil cases, there are exceptions to this rule. Fuentes stated in his opinion, “Exposing a child to an obvious danger is the quintessential example of when qualified immunity should not shield a public official from suit” L.R. v. Sch. Dist. of Phila., No. 14-4640, 2016 U.S. App., 89 (3d Cir. 2016).

For more information, call the Philadelphia business lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Enforceability of Fee Agreement Via Email

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Recently, a Pennsylvania Superior Court ruled in a business litigation case where a contingent fee agreement, which was set forth in an email between an attorney and client, was enforceable against the client even though the client did not sign it.

In that case, the client owed approximately $40,000 to his attorney under that contingent fee agreement. The Court found that client should be responsible for about $39,000 of it. The main takeaway in that case has major impacts on how attorneys or other businesspeople can collect their fees. The fee agreement between attorney and client was enforceable since it appeared in an email between the parties and no signature by the parties was necessary. In that case, it may also be important to note that the email that contained the agreement requested a $32,000 upfront fee which the client promptly paid.

Emails Constitute as “In Writing”

The client attempted to argue that the fee agreement was not enforceable since the Pennsylvania Rules of Professional Conduct (RPCs) for attorneys requires that contingent fee agreements must be in writing. The court found that the client’s argument failed for two reasons: first because the Rules of Professional Conduct for attorneys do not have the same weight as substantive law in civil proceedings since those rules are intended to be relied upon in attorney disciplinary proceedings; secondly, the court said that the contingent fee agreement was in fact in writing, as required by the RPCs, since it was in an email sent from the attorney to the client.

Although attorneys and other businesses have traditionally favored signed paper contracts for these types of fee agreements, technology appears to be carrying more weight these days. Even though it was not mentioned in the Court’s opinion, the Court may have also found it important that there was no question that the client actually read and received the emailed fee arrangement since he paid the $32,000 in response to that email. Additionally, this client was likely quite knowledgeable in business matters since his attorney was defending him regarding a $1.5 million loan he received from his employer, a major bank.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Counsel on Business Litigation Issues

Call the Philadelphia business lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600, or contact us online, to see how we can protect your rights in when entering into or disputing business agreements.