Philadelphia Business Lawyers: Communications Decency Act

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State Law Claims Such as Defamation and Negligence Barred under the Communications Decency Act

Under the Communications Decency Act 47 U.S.C.A. § 230 (“CDA”), a party is immune to state law claims relating to information published on the Internet such as defamation, misappropriation of likeness, breach of contract, and negligence. § 230 of the CDA states that no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

For example, these provisions bar state law claims against interactive computer services for publishing content obtained from another information content provider. Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 293 (D.N.H. 2008). The intent of this provision is to preclude courts from entertaining claims that would place a computer service provider in a publisher’s role. Green v. Am. Online (AOL), 318 F.3d 465 (3d Cir. 2003). The Eastern District of Pennsylvania ruled that the CDA provides immunity to similar claims like misappropriation of the right of publicity, defamation, and negligence. Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d, 242 F. App’x 833 (3d Cir. 2007) citing (Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir.) (§ 230 affords immunity from suit on claims of invasion of privacy, misappropriation of the right of publicity, defamation, and negligence)).

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

Philadelphia Trademark Lawyers: The Digital Millennium Copyright Act

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Protecting Internet Service Providers from Claims of Copyright Infringement

The Digital Millennium Copyright Act 17 U.S.C. §§ 512, (“DMCA”), is a law that heightens the penalties for copyright infringement on the Internet. The DMCA provides a safe-harbor provision for internet service providers from monetary liability under the Act as long as they comply with the conditions set forth in § 512. An internet service provider is defined as

“an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received and/or a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).”

Companies like Google and Amazon are considered internet service providers because they merely provide the online services that allow third party users to sell goods. Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) aff’d, 242 F. App’x 833 (3d Cir. 2007) and Hendrickson v. Amazon.Com, Inc., 298 F. Supp. 2d 914, 914 (C.D. Cal. 2003).

Internet service providers are protected under the Act’s safe-harbor provision as long as the provider: does not have actual knowledge of infringing content on its servers, does not receive a financial benefit directly attributable to the infringing activity if the provider has the ability to control such activity, and acts quickly to remove or disable access to infringing material after receiving notice that the material is infringing.

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

Philadelphia Trademark Lawyers: Disparaging Trademarks

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Recently, an all Asian-American band called The Slants made headlines because the United States Patent and Trademark Office “USPTO” denied their application for a trademark on grounds that their name was a racially disparaging term. Trademark registration is considered “government speech,” and thus is regulated.

Although American citizens have freedom of speech, and the right to exercise that privilege, the government cannot sanction disparaging language. In other words, although a band can call themselves The Slants, and more generally, anyone can use any “trademark” or name they like regardless of how disparaging it may be, the government cannot register an offensive trademark. The so-called disparagement provision of Section 2(a) of the Lanham Act prohibits registration of marks that “may disparage” any person or group.

The Slants are a Portland, Oregon based rock band founded by musician Simon Shiao Tam. Tam states that, as an Asian-American, he named the band in an effort to reclaim power from a racial slur that had been used against him his entire life. According to Tam, the band’s name also refers to “guitar slants” and the band members’ unique slant on life.

Enforcement of the Lanham Act is Unconstitutional

After the USPTO denied the application pursuant to the disparagement provision, Tam filed suit. The matter is currently pending before the United States Supreme Court. Before the case made its way to the Supreme Court, a Federal Circuit Court of Appeals determined that the disparagement provision of the Lanham Act is unconstitutional. The Circuit judges noted that regardless of their personal feelings about the trademark at issue, or any other disparaging marks, the First Amendment forbids government regulators to deny registration on grounds that it finds the speech likely to offend others. The Court went so far as to note that Tam’s role as a musician is to weigh in on cultural and political discussions about race and society that are “within the heartland” of speech protected by the First Amendment. The issue currently before the United States Supreme Court on appeal is whether the disparagement provision is facially invalid under the Free Speech Clause of the First Amendment.

A number of so-called interested parties have filed amicus briefs in this case. One brief, submitted to the Court by the Cato Institute, takes issue with the fact that the government should not get to decide what is or is not a racial slur.

One related case that may be instructive involves the registration of the NFL team named the Redskins. A District Court upheld the cancelation of the Redskins trademark on grounds that it may disparage Native Americans. The Court noted that because trademark registration is “government speech,” it is exempt from First Amendment scrutiny.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green, P.C. Have Extensive Experience Litigating Trademarks

If you have questions about registering a trademark or protecting an existing mark, the Philadelphia intellectual property lawyers at Sidkoff, Pincus & Green can help. We have decades of combined experience in intellectual property law. With offices conveniently located in Philadelphia, we serve clients throughout Pennsylvania and South Jersey. Schedule a consultation today by calling us at 215-574-0600 or by completing our online contact form.

Philadelphia Business Lawyers: Arbitration Clauses Not Always Enforceable or Advisable

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Arbitration is an alternative to litigating in court and it may lead to a cheaper and more expedient result. It also may be favorable to both sides in certain situations, particularly when it concerns two equal parties with access to equivalent resources saving time and money for all concerned. However, arbitration is often a disadvantage when the playing field is not level,  and for that reason, it is a common tool used by big business against consumers and employees.

Recently the American multinational technology conglomerate, Cisco, tried to force a lawsuit by one of its employees into arbitration and lost in San Francisco Superior Court. An employee filed an age discrimination claim against Cisco. The company responded by stating that the employee had given up the right to sue when she signed her employment contract because it included a clause that said any disputes must be settled by binding arbitration. However, the clause about arbitration was buried within a form that was mainly about intellectual property claims – something every employee must sign in order to be able to work at Cisco.

Judge Harold Kahn ruled that in effect, Cisco had surprised the employee with the arbitration requirement by putting the language in one paragraph on page five of a seven page, single spaced document about proprietary information. Moreover, the language stated that the employee was also obligated to pay half the costs of any employment disputes that went to arbitration, which is against California regulations.

Arbitration is a Common Practice for Companies

Cisco is not the only company trying to use arbitration to its advantage. Wells Fargo is still recovering from the scandal that broke when the practice of opening multiple accounts in a customer’s name without their knowledge became public. Victims seeking justice were forced into binding arbitration by the bank. The original accounts had a clause about arbitration which the bank said also applied to any subsequent disputes. Due to the fact that most results of arbitration cases are not a matter of public record, the scale of the Wells Fargo scandal was kept under wraps for longer than it would have been in a court of law.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Defend Those Being Forced Into Arbitration

Consumers and employees need to be aware of arbitration clauses because they are extremely common. At Sidkoff, Pincus & Green, we have experience representing consumers and individuals in arbitration matters, and in court.

If you have a matter that is in arbitration, or you are concerned about signing a contract with an arbitration clause, please feel free to contact the Philadelphia business lawyers at Sidkoff, Pincus & Green, P.C.. Call us at 215-574-0600 to schedule an appointment or contact us online. We serve clients throughout Pennsylvania and New Jersey.

 

 

Philadelphia Employment Lawyers: Sexual Orientation Discrimination

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In a recent groundbreaking ruling, a Pennsylvania district court found that discrimination based on someone’s perceived sexual orientation falls under the protections of Title VII of the Civil Rights Act of 1964. The individual involved in the case was a homosexual man employed as a telemarketer by Scott Medical Health Center. The lawsuit alleged his manager made offensive and unwanted comments to him about his sexual orientation several times a week. He further claims that he was asked explicit questions and was exposed to homophobic slurs. The man claims he reported the conduct to the health center’s president, but no action was taken to stop the harassment. Ultimately, the man says that he was constructively discharged because the treatment he endured created a hostile work environment.

The defendants moved to dismiss the claim on the grounds that perceived sexual orientation was not protected under Title VII.  However, the court ruled against defendants, finding no meaningful difference existed between sexual orientation discrimination and discrimination because of sex. The court noted that sex stereotyping included assumptions about how a person’s sexuality should conform to their sex and gender. The court ultimately likened the plaintiff’s experience to that of a female employee who is told to dress more femininely, or wear make-up and jewelry in order to achieve promotion. The court cited recent decisions across the U.S. Courts that have increasingly been finding that sexual orientation is a Title VII protected trait. The court also drew from the Supreme Court opinion legalizing same-sex marriage.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Employees in Sexual Discrimination and Sexual Harassment Claims

If you have suffered an adverse employment action such as failure to hire, termination, or denial of a promotion on the grounds of your sexual orientation or because of your gender, you may have a valid discrimination claim. Philadelphia employment lawyers at Sidkoff, Pincus & Green will fight back against injustice. We seek maximum compensation for damages suffered as a result of discrimination. To learn more about how we can help you, call us at 215-574-0600 or contact us online today.

Philadelphia Whistleblower Lawyers: The False Claims Act 

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The False Claims Act is a federal law that holds people and companies liable for defrauding government programs. Pursuant to this Act, private citizens can sue those that commit fraud against the government. These cases are referred to as “qui tam” cases, because they are brought under the qui tam provision of the False Claims Act. The Act provides for treble (triple) damages, and provides whistleblowers with awards of 15 to 30 percent of the money recovered. The Department of Justice (DOJ) recently announced that 2016 was the third highest recovery year in the history of the False Claims Act.

The DOJ issued a press release stating that they obtained close to $5 billion in settlements and judgments for cases where persons or companies defrauded the federal government in 2016. More than 50 percent of these recoveries were brought under the qui tam provisions of the False Claims Act. The whistleblowers recovered a staggering $519 million in 2016 alone.

Most of the money recovered in 2016 came from the health care industry. The next common sector where recoveries were made was the financial sector, largely relating to housing and mortgage fraud. Procurement fraud, fraud associated with federal education funds, and customs fraud followed close behind.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Counsel Clients About Whistleblower Protections

Whistleblowers may be entitled to confidentiality and protection against employer retaliation. The highly-experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green can advise you of your rights, and help you determine whether you are eligible for compensation under the qui tam provisions of the False Claims Act or under other state and federal laws. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Whistleblower Lawyers: Award for Penn State Whistleblower

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Michael McQueary, a former Penn State University assistant football coach, was recently awarded an additional $5 million by a Pennsylvania judge.  Judge Thomas Gavin of Centre County, Pennsylvania found that McQueary met the state law definition of a whistleblower.  He further found that Penn State wrongfully terminated his employment in retaliation for the whistleblowing.  The court ordered that McQueary be compensated for lost wages, reputational damage, and humiliation.  Significantly, the judge stated that had Penn State publicly recognized McQueary for stepping forward, it would have helped reduce the public shame the school caused him by firing him.

During the eight seasons he served as an assistant coach at Penn State, McQueary coached wide receivers for head coach Joe Paterno.  In 2001, he allegedly witnessed retired assistant coach Sandusky sexually assaulting a young boy.  This was ten years before the scandal was brought to light and Sandusky was charged.  In 2012, Sandusky was found guilty of molesting 10 boys.  He was sentenced to 30 to 60 years in prison.

McQueary also claimed in his lawsuit that former Penn State President Graham Spanier defamed him during a 2011 public statement.  The jury awarded McQueary $7.3 million in compensatory and punitive damages as a result of the defamation and misrepresentation.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green Fight for Employees Who Stand Up to Injustice

Under the law, a whistleblower may be a person who exposes illegal or wrongful activity.  In order to encourage people to step forward to report such activity, there are certain protections in place for whistleblowers under the law.  If you suspect that your employer has retaliated against you for reporting illegal or wrongful activity, you may be entitled to compensation under the Pennsylvania Whistleblower Law or other relevant statutes.  To discuss your situation with one of the experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green, call us at 215-574-0600 or contact us online today. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey.

Philadelphia Business Lawyers: Uber Arbitration Appeal

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When patrons of Uber’s ridesharing service open the Uber app, they are taken to a registration screen that advises them that by using the app, they are consenting to Uber’s terms of service. These terms can be accessed by a hyperlink. One of these terms binds users to arbitration. After some of Uber’s customers filed an antitrust lawsuit against the company, Uber tried to hold them to the arbitration clause. But Federal District Court Judge Jed Rakoff looked at Uber’s registration screen and determined that it did not do a good enough job of ensuring that customers knew what they were signing. Specifically, Rakoff found that Uber did not give its customers fair warning that by using their service, they agree to waive their right to sue Uber in court.

This recent Uber arbitration appeal is part of a trend in litigation, whereby consumers are questioning the validity of their “consent” to hidden terms and conditions on their mobile phone screens. Generally, for consent to be valid, consumers must actively click on a button that says, “I agree,” or something similar. This is referred to as a clickwrap contract. Courts in some circuits are reluctant to honor any other type of agreements.

The Age of the Internet Waiver

In his ruling, Judge Rakoff noted that the right to a jury trial has been one of the most precious and fundamental rights afforded to citizens. Yet, in the world of the Internet, consumers are all deemed to have regularly waived this right on a daily basis and given up our access to courts altogether. He emphasized that many people are unaware of these conditions, and even if they are, they have no real ability to negotiate.

Uber appealed Judge Rakoff’s ruling to the 2nd U.S. Circuit Court of Appeals. Judge Rakoff agreed to stay the underlying antitrust class action until the 2nd Circuit weighs in on the validity of consumer consent to Uber’s arbitration clause. If the 2nd Circuit Court reverses Judge Rakoff’s decision, the antitrust class action will proceed to arbitration.

There has been some criticism to Judge Rakoff’s opinion. The Internet Association warned that his opinion unsettled existing case law. Members of the Internet Association include some of the largest online retailers in the United States. They also claim that consumers have become accustomed to this type of mobile contracting (with hyperlinked terms of service), and know what to expect.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Counsel Clients on All Aspects of Arbitration

Philadelphia business lawyers at Sidkoff, Pincus & Green have experience litigating and counseling clients in all facets of arbitration. From defending arbitration clauses, to challenging arbitration clauses in class action lawsuits on behalf of consumers, we have extensive experience with all aspects of business litigation. We also routinely litigate arbitrations and have a track record of achieving our clients’ goals. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Whistleblower Lawyers: Enforcement Action Leads to $3.5M Award

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A whistleblower was recently awarded approximately $3.5 million by the Securities and Exchange Commission (SEC) for shining a light on wrongdoing that led to a successful enforcement action. According to the SEC – which did not name the whistleblower nor identify the wrongdoer – tips from whistleblowers have led to the recovery of $874 million in financial remedies since the SEC whistleblower program was created in 2012.

Many Americans remain unaware of the financial incentives available to conscientious employees who report their employer’s fraudulent behavior. Whistleblower protection extends to any worker who alerts government regulators to a variety of wrongdoing, including violations of the False Claims Act, the Clean Air Act, the Dodd-Frank Act, the Occupational Safety and Health Act, and many other federal statutes. A whistleblower is granted complete confidentiality by the government when the information disclosed leads to a successful enforcement action. Moreover, if monetary sanctions issued against a wrongdoer exceed $1 million, a whistleblower is entitled to an award ranging between 10 percent and 30 percent of the sanction.

Proceeding as a Whistleblower in Pennsylvania

Whistleblowers must proceed with caution and limit discussions of their concerns with coworkers. Instead, if an employee has a good faith belief that their employer has defrauded the government or consumers, they should first seek counsel from a lawyer who will ensure that whistleblower protections are in place before regulators are contacted. An employer who suspects that a member of their workforce is in talks with the SEC or other government officials may attempt to short-circuit an investigation by taking retaliatory action against a whistleblower. Fortunately, pursuant to the federal Whistleblower Protection Program, when a whistleblower’s actions lead to an enforcement action, the whistleblower is entitled to reinstatement to their previous position in addition to the aforementioned monetary award.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green, P.C. Offer Reliable, Trustworthy Representation

Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. understand the concerns of conscientious employees in their effort to shed light on wrongdoing by an employer. If you or a loved one has information relating to a potential whistleblower claim, call 215-574-0600 or contact us online to learn more about how we can help. At our Philadelphia offices, we proudly serve whistleblower clients throughout Southeastern Pennsylvania as well as South Jersey.

Philadelphia Business Lawyers: Pennsylvania Revenge Porn Law

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In 2014, Pennsylvania joined 25 other states in passing what is commonly known as a “revenge porn” law. 18 Pa.C.S.A. § 3131. The new law prohibits unlawful dissemination of intimate images which depict a current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct with the intent to harass, annoy or alarm that individual.

The law makes it a crime for anyone to post explicit photos of a former partner online or send them to others without that partner’s consent. Violators could be sentenced to a year in prison and fined $5,000 if the victim is an adult, or five years in prison with a $10,000 penalty if the victim is a minor.

Difference between Invasion of Privacy Law and Revenge Porn Law

Pennsylvania already has an Invasion of Privacy Law which makes it a crime for someone to take nude photos of another individual without that individual’s consent. 18 Pa.C.S.A. § 7507.1. First time offenders of this law could be sentenced to a year in jail and a $2,500 fine.

The difference between the Invasion of Privacy Law already on the books and Pennsylvania’s new Revenge Porn Law is that in the case of revenge porn, a partner had given consent for the photographs to be taken of him or her. However, the Revenge Porn law is designed to curb the release of intimate photographs that, despite being taken with a partner’s consent, were ultimately disseminated to others, such as through email, or posted on the Internet, without that partner’s consent.

Opportunities for Civil Recourse

Victims of revenge porn searching for compensation may be able to find it through the civil legal system, but may face some challenges in doing so. If a victim does not know who released the photo, or a website is protecting the identity of an uploader, it will be difficult to name a defendant in a lawsuit. Victims of revenge porn will also have trouble pursing a claim against websites upon where the photo is published, because under federal law, internet publishers or websites are not liable for content posted by third-party users; therefore, a website cannot be held liable for a photo or video posted by a user. However, a website that urges users to submit the type of content the victim’s claim involves can sometimes deemed as engaging in the content as a co-developer or editor, and therefore open them up to potential liability.

While there are challenges, there are ways for a victim to obtain redress. One possible avenue is a claim for copyright infringement. The Digital Millennium Copyright Act (DMCA) permits victims of revenge porn to file a report for copyright infringement when they see that their photo is being distributed online, and leads to the issuing of a “takedown notice” to an internet service provider or hosting company. This notice expedites the removal of a photo from a website. A lawsuit for copyright infringement can also provide the opportunity to collect damages. However, there is a limitation with this avenue of recourse in that the copyright belongs to the person who took the photo; therefore, a victim who had a photo taken of them is not the copyright holder and will not be able to pursue this claim unless he or she can obtain copyright ownership.

Other causes of civil action include intentional infliction of emotional distress, private disclosure of public facts, intrusion upon seclusion and identity theft.

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