Philadelphia Employment Lawyers: ADA Suit Against CVS

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The Third Circuit affirmed an order of the United States District Court for the Middle District of Pennsylvania, granting a summary judgment motion for CVS, the defendant in a disability discrimination case brought by the plaintiff, Nicole Moore. Nicole Moore v. CVS RX Services, Inc., No. 15-3836, (3d Cir. Sept. 8, 2016)

Moore was employed by CVS while pregnant. Unfortunately, she developed complications during her pregnancy that made it so she was not able to lift over her head or climb. CVS was unable to give her a job with these limitations, so the company allowed her to go on short-term disability. Moore returned to work after her child was born, but developed post-pregnancy complications. CVS’s Leave of Absence department approved a leave for a small period of time that was later extended to end up being a few months in total. When Moore sought to extend her leave even further, the Leave of Absence department asked her to provide proof or certification from a doctor that she was unable to work.

However, when Moore went to get the certification, her nurse practitioner cleared her for work, saying she could “fully perform her job and that she needed only intermittent leave for follow-up doctor appointments.” The department then rejected her continuous leave. When Moore did not show up for work after her extension was over, she was terminated. Moore filed a complaint for failure to accommodate her disability and disparate treatment.

The Third Circuit stated that to establish a case for failure to accommodate, the plaintiff has to show under the Americans with Disabilities Act that, “(1) plaintiff was disabled within meaning of statute; (2) plaintiff was a ‘qualified individual’; and (3) the employer knew plaintiff needed reasonable accommodation and failed to provide it”. The Court stated there was no genuine issue of material fact as to the second and third elements. The reasoning for this is that a qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Because Moore was unable to lift over or head or climb, she could not perform the basic functions of her job with accommodations, and therefore was not a qualified individual under the statute. Furthermore, CVS provided reasonable accommodation by giving her leave for 6 months; therefore, the third element was not met. The reasoning was similar for the dismissal of the disparate treatment claim, in that Moore needed to prove she was qualified for her job, and that she could perform the essential tasks of her job with accommodation, and she did not.

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

Philadelphia Business Litigation Lawyers: NJ Court Upholds Arbitration Award

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A New Jersey federal court recently ruled that corporate officers could be bound by an arbitration agreement that was only signed in the name of the company. The court reasoned that the individual officers were alter egos of the corporation, and successors-in-interest to their company. Significantly, because the officers had relied on the arbitration agreement to assert a counterclaim during arbitration, the court determined that they could not now escape being bound by its terms.

New World Solutions, Inc. (NWS) was formed in 2007 to provide IT services to another corporation, Asta. NWS was solely owned by Neal and Coyne, who also served as directors. Two years after formation, NWS and Asta entered into a contract for the provision of services. But after NWS paid Asta four million dollars, Asta terminated the agreement, alleging that NWS submitted inflated invoices, created a malfunctioning replacement unit, and provided essentially useless network monitoring services.

Asta commenced arbitration proceedings against NWS. The relevant provision in the services agreement specified that disputes “between the Parties” would be resolved in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Although NWS was represented by counsel at the outset, at some point, Coyne, one of the directors, assumed representation and filed the counterclaim in arbitration. A separate arbitration was initiated against Neal and Coyne individually.

In addition to finding that Coyne and Neal were bound by the arbitration agreement, the arbitrator also determined that they had used NWS to defraud Asta out of hundreds of thousands if not millions of dollars. The principals were held liable for damages in excess of three million dollars. They appealed, and a New Jersey District Court confirmed the arbitration award in full on a motion for summary judgment.

The Importance of This Ruling in Business Litigation

 A threshold issue the court had to address was whether it could assert jurisdiction over Neal and Coyne because they were not named parties to the arbitration agreement. The court determined that pursuant to the Federal Arbitration Act, the court should determine whether a dispute is to be arbitrated, unless the parties agree otherwise. The court ultimately confirmed the award even though Neal and Coyne refused to participate in the proceedings.

Philadelphia Business Litigation Lawyers at Sidkoff, Pincus & Green, P.C. Provide Competent Counsel in Arbitration

This decision serves as an important reminder that corporate officers can be bound by arbitration agreements signed in the name of their principal. If you need counsel for arbitration, the Philadelphia business litigation lawyers at Sidkoff, Pincus & Green are prepared to help. With offices conveniently located in Philadelphia, we proudly serve businesses located in Pennsylvania and South Jersey. To schedule a consultation, call us at 215-574-0600 or contact us online today.

Philadelphia Discrimination Lawyers: Report Following Lawsuit Alleging Discriminatory Behavior

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On the heels of a complaint filed against them for discrimination, Airbnb Inc. proposes several steps to end discrimination. In complaint entitled Selden v. AIRBNB, Plaintiff alleges that Airbnb unlawfully denied Plaintiff’s application for housing accommodation because of his race. In response to the complaint, Airbnb filed a motion to compel arbitration and dismiss. Although no decision has been reached thus far, in an attempt to stem negative press Airbnb will change its operating procedures to prevent discriminatory behavior in the future.

On September 8, 2016, Airbnb released a report entitled Airbnb’s Work to Fight Discrimination and Build Inclusion by Laura Murphy of the ACLU. In this report they outline their steps to eliminate racism and discrimination. These steps includes changes to methods of bookings such as removing prominence of photographs, a stronger message about Airbnb’s policy on discrimination, and making everyone who uses Airbnb affirmatively agree to Airbnb’s policy on discrimination.

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

 

Philadelphia Business Lawyers: Fitbit Gets New Attempt to Ban Rival

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The United States International Trade Commission has released a notice that they will revive efforts by Fitbit to ban the import of fitness tracking devices made by rival Jawbone. In November 2015 Fitbit filed a trade complaint alleging rival Jawbone’s wearable trackers infringed upon its patents.

The complaint requested an investigation and a cease and desist order. Jawbone moved for summary determination that the patents are directed to ineligible subject matter under the Patent Act. Presiding Judge Pender granted Jawbone’s motion for Summary Determination that the three patents by Fitbit did not deserve legal protection, and terminated the investigation in its entirety.

On September 7, 2016, the U.S International Trade Commission decided to review this initial decision by Judge Pender. The Commission found that the initial grant of Summary Determination was improper and remanded the case to further investigation into Fitbit’s patents.

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

Philadelphia Wage and Hour Lawyers: EDPA Judge Disproves FLSA Overtime Settlement

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Under the Fair Labor Standards Act (“FLSA”), an FLSA claim brought in federal court may only be settled with supervision by the Department of Labor or approval by the District Court. Howard v. Philadelphia Housing Authority, Civil Action No. 15-44662 (E.D.P.A. 2016).

In Howard v. Philadelphia Housing Authority, Judge Eduardo C. Robreno denied a portion of a settlement agreement in an FLSA lawsuit because the release was overly broad. The specific provision at issue required Plaintiff to waive “any and all” claims that related to the termination, and was not limited solely to claims under FLSA or PA wage and hour laws. The Court recognized the language was too broad and extended to areas of law not raised in the lawsuit. If the language was approved, Plaintiff would have waived other rights that could arise from a wrongful termination that were not at issue in the initial lawsuit.

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

Philadelphia Business Lawyers: Supreme Court to Review Bad Faith Standard for Insurers

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The Pennsylvania Supreme Court will review the issue of establishing insurer bad faith under 42 Pa.C.S. § 8371. The main question at hand is whether the factor of a “motive of self-interest or ill-will” is a discretionary one rather than a mandatory requirement in proving bad faith.

The Superior Court, in the case Rancosky v. Washington National Insurance Company, ruled it was a discretionary factor. 130 A.3d 79 (Pa. Super. Ct., 2015). The plaintiff in the case, LeAnn Rancosky, was denied benefits from her insurance carrier after she was diagnosed with ovarian cancer. The insurance policy included a waiver of premium, which stated that premium payments would not be required after the policy owner is disabled due to cancer for more than 90 days after being diagnosed. There was a dispute as to when the disability started, with Rancosky believing the disability started the day she was diagnosed and the carrier believing it was a later date. The carrier ultimately found that the insurance policy had lapsed because Rancosky had not paid her premiums. Among other claims, Rancosky instituted a claim of bad faith against the insurance carrier.

Because the legislature did not provide a definition of bad faith in the statue, there has been some confusion in the courts on how to apply it. Prior cases have found plaintiffs do not need to prove ill-will to proceed with bad faith claims. The Superior Court restated a two-part test to determine bad faith of an insurer: “that (1) the insurer did not have a reasonable basis for denying benefits under the policy, and (2) the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim.” (at *92). The Superior Court then held that, “A ‘dishonest purpose’ or ‘motive of self-interest or ill will’ is not a third element required for a finding of bad faith,” but “may be considered in determining the second prong of the test for bad faith, i.e., whether an insurer knowingly or recklessly disregarded its lack of a reasonable basis for denying a claim.” (at *93). The Supreme Court will hear arguments to hopefully settle the issue.

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

Philadelphia Employment Lawyers: Superior Court Enforces Contingency Fee Arrangement Written in an E-mail

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The Pennsylvania Superior Court affirmed an Allegheny County Court decision that awarded $40,000 to a personal injury firm in Pittsburgh. Flaherty Fardo, LLC v. Keiser, No. 1260 WDA 2015 (Pa. Super. Ct., Aug. 8, 2016).

The dispute was between the firm, Flaherty Fardo, and one of its clients, Thomas Keiser. Keiser claimed that a contingency fee arrangement written in an e-mail was unenforceable, because it was not a “signed writing to reflect the terms of the parties’ agreement,” and relied on the Pennsylvania Rule of Professional Conduct 1.5(c) to solidify his argument.

Keiser hired Flaherty Fardo to defend him in a lawsuit against Citigroup, his former employer. Part of Keiser’s compensation package when he was hired included an employee forgivable loan of approximately $1.5 million under a nine-year arrangement. When Keiser left the company after only three years, Citigroup sued to recover the remaining $1.03 million, plus interest and attorneys’ fees of about $400,000.

The contingency fee arrangement e-mail contained a $32,000 flat fee up front, and an additional ten percent of any savings realized by the firm from the total amount Citigroup was asking. Following arbitration, Citigroup was awarded the entire remaining loan amount, but no interest or attorneys’ fees. Flaherty Fardo then sent Keiser an invoice for $40,000, believing it had saved Keiser $400,000. After Keiser fired the firm and refused to pay, the firm filed a complaint against him.

The Superior Court, relying on precedent, found that the Pennsylvania Rules of Professional Conduct do not have the effect of substantive law, but are instead only used in disciplinary proceedings. Furthermore, even if those rules did have legal effect, the Court found that the arrangement would have been enforceable, because it was in writing. Furthermore, even though the arrangement was not signed and does not comply with the statute of frauds, the Superior Court stated there is no prior case law that states contingency fee agreements have to comply strictly with the statute of frauds. Therefore, the ruling was affirmed and Flaherty Fardo was awarded the nearly $40,000.

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

 

Philadelphia Business Lawyers: Breach of Contract and Insurance Fraud Claims Preempted by ERISA

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In Butler v. Liberty Mutual, the Third Circuit ruled that The Employee Retirement Income Security Act of 1974 (“ERISA”) preempts state law claims like breach of contract and insurance fraud involving employee benefit plans. No. 16-1316, 2016 WL 3346067, at *1 (3d Cir. June 16, 2016). In this case, Plaintiff Andre Butler suffered an injury while employed at Home Depot in 2011. Plaintiff subsequently filed for short-term disability benefits with Defendant, Liberty Life Assurance Company of Boston, from which he received benefits for a limited period of time. The policy was sponsored by Home Depot. After Defendant determined Plaintiff was ineligible to continue receiving support, it denied Plaintiff further benefits. Plaintiff proceeded to file a workers’ compensation suit which ultimately dismissed before filing suit alleging that his denial of benefits was insurance fraud and a breach of contract. After the suit was dismissed in the District Court, Plaintiff appealed to the Third Circuit.

The Third Circuit affirmed the District Court’s ruling to Dismiss Plaintiff’s Complaint due to the fact that Plaintiff’s claims for breach of contract and fraud fall within the scope of ERISA preemption because they relate to an ERISA-governed benefits plans.

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

Philadelphia Employment Lawyers: Eastern District of Pennsylvania Dismisses Suit Against Uber

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On August 23, 2016, U.S. District Judge Robert Kelly for the Eastern District of Pennsylvania dismissed a complaint filed by two cab medallion owners through their company, CoachTrans against Uber for $1.5 million in damages. Judge Kelly ruled that Plaintiff inappropriately attempted to make a federal case out of issues that were more appropriate for review by state agencies. He further stated that Plaintiff’s claim, which argued that Uber “neglects to comply with Pennsylvania’s regulations for taxis” demonstrates that “plaintiff’s claim requires review and application of the pertinent taxi regulations.”

Judge Kelly recommended that Plaintiff file its complaint with the Philadelphia Parking Authority (“PPA”). However, if Plaintiff seeks to refile its Complaint with the PPA, it could lose its right to damages, as a recent Eastern District decision in Checker Cab Philadelphia v. Uber Technologies ruled that violations of local and state regulations do not allow for private causes of action.

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

Philadelphia Commercial Lawyers: Tyson Foods Trademark Infringement Case

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A federal judge has ruled against Pittsburgh-based sausage company Parks LLC in the company’s trademark infringement and false advertising case against Tyson Foods Inc. Parks brought the case to the U.S. District Court for the Eastern District of Pennsylvania over claims that Tyson’s use of the phrase “Park’s Finest” to describe a line of their Ball Park hot dogs was deceptive and infringed upon Parks’ trademark name.

Parks LLC is owned by former running back for the Pittsburgh Steelers and Hall of Famer, Franco Harris, and Lydell Mitchell, former running back for the Baltimore Colts. The brand has long been recognized for its television commercials that feature a boy begging his mother for “more Parks’ sausages Mom… please.”

In 2014, Tyson Foods Inc and Hillshire Brands Company, co-owners of the “Ball Park” trademark, launched a new line of premium hotdogs under the name “Park’s Finest.” Parks LLC later filed a lawsuit against the companies, charging them with false advertising, trademark infringement, and trademark dilution in violation with the Lanham Act.

The judge ultimately decided in favor of the defendants on all counts, citing Parks’ inability to provide sufficient evidence to prove that Tyson violated the law. In regards to the false advertising charge, the judge concluded that Tyson’s use of “Park’s Finest” was not used to confuse or deceive consumers, but rather functioned as a reference to their Ball Park brand. Furthermore, Parks was unable to show that a substantial number of consumers were actually deceived by the phrase.

Parks’ similarly failed in its attempt to prove trademark infringement. Although Parks did at one time hold federal trademark registrations, those registrations expired sometime between 2003 and 2011. To succeed on a claim of trademark infringement, the company would have to prove that the name “Parks” possesses a secondary meaning. The existence of a secondary meaning is based on a number of factors that lead to buyer association, including: the size of the company; the extent of sales and advertising; the number of customers; the number of sales made under the mark; and actual confusion. The judge concluded that Parks could not prove trademark infringement under those standards.

Philadelphia Commercial Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Trademark Litigation Cases

For more information about Lanham Act trademark laws and how they relate to your business, call the Philadelphia business litigation lawyers at Sidkoff, Pincus & Green today. Our experienced and highly skilled business lawyers handle all types of business litigation. Call 215-574-0600 to arrange a consultation or contact us online.