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.

Philadelphia Employment Lawyers: Discrimination Claims Dismissed for not Meeting Filing Requirements

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In a recent Third Circuit opinion, the Court ruled that Susan Vangjeli, a former municipal library guard at the Philadelphia Free Library did not properly raise her discrimination claims as required by law. Vangjeli made claims for discrimination, retaliation, and harassment, based on her gender, in violation of Title VII.

 

Vangjeli initiated against the City of Philadelphia and Free Library of Philadelphia suit after observing two male employees receive promotions to full-time jobs, while she continued to be a seasonal employee. The City of Philadelphia and Free Library of Philadelphia moved to dismiss the claim, which was granted by the Trial Court and ultimately upheld by the Third Circuit as well. The court noted numerous deficiencies with appellant’s complaint most notably that she failed to exhaust her administrative remedies before proceeding with the Courts. When complaining of unlawful employment practices, one must first file with the Equal Employment Opportunity Commission (EEOC) within 180 days, or file with a state agency within 300 days. Here, Vangjeli failed to file in proper time by waiting more than one year to file with the EEOC.

For more information on discrimination and retaliation claims call the Philadelphia Employment Lawyers at Sidkoff, Pincus & Green at  215-574-0600 or contact us online.

Philadelphia Employment Lawyers discuss the Growing Problem of Classifying Employees as Independent Contractors

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Employers continue to face legal trouble over whether some of their employees are independent contractors. From an employer’s perspective, this is an important issue with financial consequences. If a worker is an independent contractor, the employer does not bear the costs that they would with other employees. For instance, the employer is not required to pay minimum wage or their share of social security. Recent examples of employees bearing their own costs as independent contractors include FedEx drivers buying or leasing their own vans and Uber drivers paying for their own vehicles, gas and other expenses.

 

There does not appear to be an end to this issue as workers continue to contest their classification as independent contractors throughout the country. In 2015, FedEx settled an independent contractor mislabeling case for $228 million. Uber also faced an independent contractor mislabeling suit and settled for $100 million with 450,000 drivers in Massachusetts and California. Uber continues to have legal issues with the misclassification of drivers throughout the country as a putative class action of drivers from the remaining 48 states was filed in Illinois Federal Court.

 

While companies like Uber and FedEx are facing these ongoing legal battles, the Department of Labor attempted to resolve the issue. In July of 2015, the DOL provided some guidance to help employers determine whether a worker is an independent contractor or an employee. According to the Department of Labor, the factors to be considered are:

 

  • The extent to which the work performed is an integral part of the employer’s business.
  • The worker’s opportunity for profit or loss depending on his or her managerial skills.
  • The extent of the relevant investments of the employer and workers.
  • Whether the work performed requires special skills and initiative.
  • The permanency of the relationship.
  • The degree of control exercised or retained by the employer.

While these factors are useful in determining whether a worker is an employee or an independent contractor, the DOL rejects a mechanical approach and no single factor is determinative. This issue continues to be very much unsettled and a resolution in the future can have important consequences on both employers and employees with regard to overtime, insurance and taxes.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green represent clients in matters of employment law. For more information call  215-574-0600 or contact us online.

Philadelphia Business Lawyers: New Jersey Cops Settle Whistleblower Case for $400,000

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In 2011, then-Detective Sergeant John A. Hamilton and then-Captain Douglas F. Carmen filed suit against the Linwood Police Department in New Jersey, alleging that Chief Jim Baker’s behavior created a hostile and retaliatory work environment. Among many allegations, the lawsuit claims Chief Baker asked the two officers to lie about police protection that was afforded to a woman who was later stabbed to death. The allegations also claim Chief Baker influenced one of the officers to make a deal that would favor Chief Baker and hurt other officers, as well as Chief Baker taking away the two officers’ chance to work overtime despite having a contractual right to overtime pay.

 

Many of these instances that disparaged the reputations of both officers occurred over phone conversations that were recorded. The ex-Detective Sergeant Hamilton was also passed over for a less qualified candidate for the position of Chief when Baker retired (ex-Detective Sergeant Hamilton did become chief in March of 2015 when Baker retired). Ultimately, the suit was settled against the city for $400,000.

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