Philadelphia Business Lawyers: Class Action Lawsuit for Unsolicited Text Messages

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Advertising firm, Campbell-Ewald, sent unsolicited text messages on behalf of the U.S. Navy to approximately 100,000 people, stating: “Destined for something big? Do it in the Navy.” These messages were sent as part of an ongoing recruitment drive. The U.S. Supreme Court has recently ruled against Campbell-Ewald, despite arguments that the advertising firm’s settlement offer to class action members would have resolved the case.

The class action plaintiffs claim that the company violated the federal Telephone Consumer Protection Act by sending the unsolicited text messages. The company argued that because it had offered to pay plaintiffs the maximum amount available under law to settle the claims, that the Court had no grounds to hear the case. Campbell-Ewald had offered to settle for $1,500 for each violation of the Act.

The Supreme Court upheld the September 2014 decision of the San Francisco-based 9th Circuit Court of Appeals. The Court’s six-three decision was issued in favor of the plaintiffs, led by class action lead plaintiff Jose Gomez. Writing on behalf of the majority, Justice Ruth Bader Ginsburg indicated that an unaccepted settlement offer does not moot a plaintiff’s case. The Court’s opinion is docketed Campbell-Ewald v. Gomez, U.S. Supreme Court, No. 14-857.

In the current Supreme Court term, there are three class action appeals on the docket. The other cases involve appeals filed by Tyson Foods, Inc. and Spokeo, Inc. Campbell-Ewald is a large Detroit-based advertising agency that is a subsidiary of the Interpublic Group of Companies, Inc.

The U.S. Navy was not named as a defendant in this case and is not being sued with respect to this incident. The Obama administration has filed an amicus brief in favor of Gomez and the other class action plaintiffs.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Individuals in Class Action Lawsuits

In a class action lawsuit, large numbers of individuals who have suffered a similar harm can harness the power of their numbers to effectively seek justice against a large corporation. When an individual suffers a nominal harm, such as receiving an unsolicited text message, there is no incentive to file a lawsuit due to the high cost-benefit ratio. But when plaintiffs unite, class actions are an effective means to hold corporations responsible for their harmful conduct.

Philadelphia business lawyers at Sidkoff, Pincus & Green represent clients in class actions throughout Philadelphia and South Jersey. Our offices are conveniently located in Center City Philadelphia. To schedule a consultation, call us at 215-574-0600 or contact us online.

Philadelphia Litigation Lawyer: How To Help Your Lawyer Win Your Case

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By Gary Green, Managing Partner at Sidkoff, Pincus & Green P.C., [email protected]

The client is not just a passenger in a lawsuit. Instead, the client should be a combination of co-pilot and Air Traffic Control. Your lawyer needs your help.

1.  Write A Story About Your Case

You know what happened. Judges and juries will transform the evidence they hear at trial into a story. Therefore, you can get a head start by putting the facts together in the same way a novelist would write about the case. You can use chronological order and create a narrative that starts at the beginning. In some cases, the personalities and relationships of the parties and witnesses are more important. Whatever you select, write out everything you can think of. Eliminate all duplication to allow your lawyer to digest your story. Keep a copy and update your story as you learn or understand new things. Do not be afraid to throw out the story and start over if the mode you picked (e.g., chronological) turns out to be less effective than another (e.g., personal relationships). When you have your testimony taken, your story will help you keep the facts in perspective to the issues in the case. Also, your narrative will be a road-map for your lawyer when he cross examines your adversaries and plans for the evidence needed for you to win.

2.  Do Not Be Afraid To Be Honest

Many people make the mistake of thinking that if their case does not have a perfect set of facts they cannot win. However, judges and juries know life is flawed like genuine leather and a case that looks perfect is treated like a cheap, plastic imitation of the truth. Your lawyer will be planning your case around what you tell him. If you do not tell him the truth, he will get stuck on a detour. Think of telling an ambulance driver directions on where it should pick up a sick loved one. You surely would be as accurate as possible; and your communications with your lawyer must be just as careful and accurate

3.  Organize Your Emails And Papers

In modern trials, email and documents often dominate the case. Do not shirk the work of diligently searching all of your computers and phones for email and text messages; and similarly, locate every paper document. These things will be like bullets in your lawyer’s gun on the one hand, and will give him a plan of how to avoid traps.

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

Philadelphia Business Lawyer: Monster Energy Settles Copyright Infringement Lawsuit

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Monster Beverage Corp. (Monster) recently settled a copyright infringement lawsuit filed by the Beastie Boys. The claim arose after Monster released a four-minute long commercial for a Canadian snowboarding competition. The video featured five Beastie Boys’ tracks without the group’s permission. The Beastie Boys then filed a lawsuit, asserting that the commercial use of their songs lead the public to think that they had endorsed the company’s energy drink, Monster Energy, when they did not.

The band won the lawsuit on its merits and were subsequently awarded $1.7 million plus an additional $667,000 in legal fees. However, Monster appealed on grounds that the award was unreasonably high. The Beastie Boys settled the case with Monster before the appeal was adjudicated for an undisclosed amount.

Philadelphia Business Litigation Lawyers at Sidkoff, Pincus & Green Represent Victims of Copyright Infringement

At Sidkoff, Pincus & Green, our experienced team of Philadelphia business litigation lawyers handle all types of legal matters, including claims of trademark and copyright infringement. If you believe your business is the victim of copyright infringement, contact us at 215-574-0600 or fill out our online contact form today.

 

Philadelphia Bad Faith Lawyers: Award Against Safe Auto

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Bad Faith Charges Awarded Against Safe Auto after Failing to Appear at Arbitration

 In the case of Mangan v. Safe Auto Insurance Company, the policy owner brought claims for breach of contract and bad faith after Safe Auto refused to pay a claim arising from a traffic accident that the insured’s vehicle was involved in. The policy owner asserted that he was not required to cover the damage to the vehicle under the terms of the policy.

An arbitration hearing was scheduled on the day the complaint was filed, which neither defense counsel nor a representative for Safe Auto Insurance Company attended. The Arbitration Panel held an ex parte trial, during which it only heard testimony from the policy owner and his counsel. The Panel entered a verdict against Safe Auto for $35,000 ($24,000 being in bad faith damages).

Safe Auto filed a motion for post-trial-relief asserting the verdict should be vacated and the case should be scheduled for a new arbitration hearing. Safe Auto claimed there was no evidence produced that showed their failure to appear was intentional and they were not notified in an adequate amount of time. Safe Auto additionally claimed the trail failed to “consider any lesser sanctions than imposing an ex parte verdict” and to “limit the non-jury award to $25,000” in violation of a local rule. The motion was denied and Safe Auto appealed. In affirming the judgment, the Superior Court reasoned that the trial court thoroughly addressed the insurer’s claims, and determined that the court properly denied the insurer’s request that the verdict be vacated, “as defense counsel did not offer a satisfactory excuse for his failure to appear.”

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

Philadelphia Business Lawyers: SEC Charges Settle

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SciClone Agrees to Pay $12.8 Million to Settle SEC Bribery Violation Charges

SciClone Pharmaceuticals Inc., a US-based, China-focused specialty pharmaceutical company will install a number of compliance measures after employees of SciClone subsidiaries acted as SciClone agents and gave money, gifts, and other things of value to foreign officials in China in order to obtain sales of SciClone pharmaceutical products. These transactions were falsely recorded in SciClone’s books and records as legitimate business expenses (travel, conferences, and promotional expenses). Although the company fired the specialist and conducted an internal investigation regarding that employee’s conduct, no further action or remedial measures were taken. The SEC determined SciClone failed to devise and maintain a sufficient system of internal accounting control and lacked an effective anti-corruption compliance program.

One of the SEC’s charges that SciClone violated was Section 30(A)(g) of the Foreign Corrupt Practices Act. This section makes it unlawful for any issuer to corruptly act outside of the United States by an offer or promise of anything of value to any foreign official.

To settle the charges, the pharmaceutical company agreed to pay $12.8 million in penalties and will hire a compliance officer for its China operations, extensively review employee travel and entertainment reimbursement policies, and reduce the number of suppliers providing third-party travel ($9.426 million in disgorgement of sales profits, $900,000 in prejudgment interest and a $2.5 million penalty).

As a result, SciClone agreed to take steps to improve internal accounting controls to make a dedicated compliance function. Those include incorporating anti-corruption policies in third-party contracts, providing anti-corruption training, disciplining employees and managers who violate such policies, and making internal audit and compliance departments. Under the settlement terms, SciClone will conduct an initial review and submit a report about the implementation of compliance measures, then conduct and prepare at least three follow-up reviews and reports.

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

Philadelphia Business Litigation Lawyers: Bad Faith Lawsuit Involving Restaurant Chain

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The Tilted Kilt Pub & Eatery, a popular bar/restaurant chain, is involved in commercial litigation with one of its franchise developers that alleges the Tilted Kilt is no longer living up to its contractual duties.

The legal battle began in November 2015, when Tilted Kilt sued 1220 LLC, a Chicago area developer for Tilted Kilt. 1220 LLC consists of four brothers, the Baroud brothers – Robert, Emil, Anthony and Peter. In 2007, the brothers entered into an area developer agreement with the Tilted Kilt, agreeing to sell and develop franchises in Northern Illinois, Southern Wisconsin and Northwest Indiana in exchange for revenue that would be generated by franchise fees.

Tilted Kilt’s Allegations

In its lawsuit, Tilted Kilt alleges that in 2009, the developers from 1220 LLC met with prospective franchise owners and told them that franchised Tilted Kilt restaurants generated revenues of $2.5 million dollars annually, which is a misrepresentation according to the complaint. The prospective business owners then entered into an agreement to establish three Tilted Kilts in Kenosha, Wisconsin; Vernon Hills, Illinois; and Gurnee, Illinois. However, the franchises did not generate the profits projected by the Baroud brothers. In fact, the Kenosha location sustained significant losses. All three locations have since closed.

Tilted Kilt has asked the court permission to terminate its agreement with 1220 for unlawfully misrepresenting the company’s financial performance.

1220’s Countersuit

Recently, 1220 filed a countersuit against Tilted Kilt, alleging that the company had failed to meet its contractual obligations. The suit alleges that Tilted Kilt abused vendor rebates, failed to develop and implement effective marketing and made unreasonable business decisions in bad-faith that cut into 1220’s profits. The brothers are seeking $20 million in damages.

The suit also alleges that Tilted Kilt had been trying to terminate their contract with 1220 for years because they wanted to acquire 1220’s stream of revenue.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Businesses That Have Been Harmed by Acts of Bad Faith

If your business has been harmed by bad faith acts, such as an intentional misrepresentation that induced you to enter into an unfavorable contract, our skilled Philadelphia business litigation lawyers at Sidkoff, Pincus & Green are prepared to help you get justice and will pursue a bad faith lawsuit in Philadelphia on your behalf. With offices conveniently located in Philadelphia, we represent businesses throughout Philadelphia and South Jersey. To schedule a consultation, call us at 215-574-0600 or fill out our online contact form today.

Wrongful Termination Lawyer Philadelphia: Subjective Employee Rating System

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Subjective Employee Rating System, Enough to find Age Discrimination in Wrongful Termination Case

Age discrimination involves treating an applicant or employee less favorably because of his or her age. The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are 40 years of age or older. The ADEA does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older. Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.

A jury recently handed down a $370,000 award to a former executive of AT&T who was wrongfully terminated based on his age. John Gerundo worked at AT&T for 43 years before he was fired at age 65. Gerundo alleged that, without any real reason for his termination, the company simply told him that his position was being “surplused.” However, soon after the termination, he learned an employee 29 years younger was replacing him. It was revealed at trial that AT&T employed an entirely subjective rating system for employees, and AT&T could not explain why Gerundo had a lower rating than the employee replacing him.

Managers would use the rating system to get the results they wanted and had complete discretion in how they would rate their employees. The jury believed the evidence in the record was enough to meet the high burden of proof a plaintiff must show in order to succeed on an age discrimination case.

For more information, call a wrongful termination lawyer Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Commercial Lawyer in Philadelphia: Detrimental Reliance

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Reliance on Promise to Party’s Detriment is Adequate Consideration Necessary to Form Binding Contract

Embedded in the principles of contract law is the doctrine of promissory estoppel.  Also known as detrimental reliance, promissory estoppel protects a party to a contract who relies upon a false promise from another party.  The basic premise of the doctrine is that when one party of a contract makes a promise that he or she should reasonably expect the other party of the contract to rely upon, and the second party actually does rely upon it to their own detriment, then the promise of the first party will be upheld if no other course to avoid injustice is available. Restatement (Second) of Contracts § 90(1) (1981).  As a part of contract law, the doctrine is subject to a four-year statute of limitations period.

In order for a contract to be formed, there must be an offer, an acceptance (together these are known as mutual assent) and some form of consideration. Consideration in its simplest form is what is given up or received resulting from the agreement in the contract.  According to the doctrine of promissory estoppel, the detriment of relying on the mutual assent is effectively the consideration necessary to form a contract. Travers v. Cameron Cnty. Sch. Dist., 117 Pa. Commw. 606, 544 A.2d 547 (Pa. Commw. 1988).  If two people make an agreement and one of the parties relies upon that agreement and suffers a loss due to the failure of the other party to perform, promissory estoppel may allow the first party to recover damages from the second party.  In Pennsylvania, governmental agencies are not immune to the doctrine of promissory estoppel. Department of Environmental Resources v. Dixon Contracting Co., Inc., 80 Pa. Commw. Ct. 438, 471 A.2d 934 (1984).

For more information, call a commercial lawyer in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Overtime Lawyer: Recent Reports Highlights “Hidden” Problem of Wage Theft

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A recent report from Sheller Center for Social Justice in Pennsylvania asserts that employers in the state are participating in large-scale wage-theft practices. These practices occur in the form of minimum-wage violations, unpaid overtime, stolen tips, illegal pay deductions and other tactics. The report claims an estimated 128,576 workers experience a minimum wage violation, 105,458 experience an overtime violation and 83,344 experience an off-the-clock violation every week.

Wage theft takes numerous forms in Pennsylvania. Some employers illegally deduct wages from their employees’ paycheck to cover the cost of uniforms, gas and other supplies necessary to perform the job, or make workers pay for such things out of pocket. Another major form of wage violation in PA is employers not paying workers the overtime they are due. In some cases, employers deliberately mislead employees about their right to overtime compensation. Employer tactics to evade paying overtime include drafting confusing employment policies and misclassifying workers as ‘independent contractors” who are not protect by overtime laws.

Currently, Community Legal Services is working with the city council in Philadelphia that would increase penalties and prevent businesses from getting business licensees if they commit wage theft.

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

Philadelphia Business Litigation Attorneys: Boards of Directors Benefit from Presumption of the Business Judgment Rule

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Generally, a corporate board of directors has a fiduciary duty of care due to their power, authority, and responsibility in managing the business affairs of the corporation. However, directors also have the protection of the Business Judgment Rule. This Rule provides for judicial presumption that directors have acted in accordance with their fiduciary duties of care, loyalty, and in good faith. Some policy reasons for this is to deter frivolous lawsuits and to encourage individuals to serve on the board.

The Business Judgment Rule can be rebutted if the plaintiff pleads, with particularity, that the Board of Directors failed to act:

1) In good faith;

2) In an informed manner (i.e., grossly negligent);

3) Without a conflict of interest; or

4) With the honest belief that its actions are in the best interest of the company

If a plaintiff can successfully prove one of those four elements to rebut the Business Judgment Rule, the burden then shifts to the board of directors to prove that their decision was both fair and reasonable (i.e., the entire fairness test of Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983) which comprises fair price and fair dealing).

In deciding fair price and fair dealing, the courts will simply look to market value when deciding if the price was fair. In order to prove that the Board dealt “fairly”, candor and disclosure is of the utmost importance. Other factors to consider are 1) when the transaction was timed; 2) how it was initiated, structured, negotiated, and disclosed to directors; and 3) how the approvals of the directors and the stockholders were obtained.

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