Philadelphia Trial Lawyers: Proposed Civil Asset Forteiture Ban

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Proposal to Ban Civil Asset Forfeiture to Come Before Pennsylvania State Senate Committee

In July of 2015, a bipartisan group of lawmakers introduced a bill requiring prosecutors to convict an individual of a crime before the State could take his/her property permanently through civil forfeiture. Civil asset forfeiture is used by police and prosecutors to take property from individuals suspected of a crime. Previously, this meant that the state could take property from an individual, even if that individual had never been convicted. Types of forfeitable property include cash, cars, homes, and other personal property.

Sentiment has been moving away from Pennsylvania’s use of civil forfeiture. In November of 2012, Judge Dan Pellegrini of Pennsylvania’s Commonwealth Court stated that Pennsylvania’s civil asset forfeiture law amounted to “little more than state-sanctioned theft.”

The Philadelphia Trial Lawyers at Sidkoff, Pincus & Green Represent Individuals Suspected of a Crime

If you or a family member is suspected of a crime and need experienced legal representation the Philadelphia Trial Lawyers at Sidkoff, Pincus & Green can help.  For more information contact us online, or call 215-574-0600.

Philadelphia Business Lawyers: Bucks County Court Allows Plaintiff to Pierce Corporate Veil

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A Bucks County Court of Common Pleas judge awarded a packaging company more than $138,000 in compensation against a limited liability company, and allowed the plaintiffs to pierce the corporate veil to recoup the money. Plaintiff, Power Line Packaging Inc., is a small, family-owned manufacturing and repackaging company focusing on personal care products. Judge Gary Gilman awarded plaintiff money after finding that Defendnats Hermes Calgon/THG Acquisition LLC and its principals intentionally made misrepresentations to plaintiff and were unjustly enriched.

Hermes Calgon was formed as a limited liability company by previous executives of a company that owned several personal care product brands. Hermes Calgon approached Power Line to develop a line of products for Shoppers Drug Mart, which is a large retailer in Canada. The defendants claimed that Shoppers Drug Mart had already placed orders with the company. Based on the representations, Power Line bought materials to create the product line, and developed product line formulas at the defendants’ request.

Power Line was never told payment was contingent on the placement of purchase orders or payments from Shoppers. Shoppers advised the defendants that the company needed to review the product pricing strategy, but defendants did not notify Power Line of Shoppers’ position. In June 2009, the defendants were told that Shoppers would not purchase the products. Power Line sued the defendants, arguing that the defendants repeatedly reassured Power Line they would pay for the purchase and storage of materials related to developing the product line.

“The court held that if you’re going to form an LLC, you need to follow the formalities of that company, and if those formalities are not followed, the individuals forming the LLC may be subject to liability[.]”

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green Handle Lawsuits against Limited Liability Companies

The Philadelphia Business Lawyers at the Law Offices of Sidkoff, Pincus & Green represent clients is all areas of business law, including commercial litigation and employment law.  Contact us online, or call us at 215-574-0600.

Philadelphia Business Lawyers: Shareholder Derivative Suits

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A derivative action is a lawsuit brought by one or more shareholders of a corporation on behalf of the corporation. The action seeks to enforce a right the corporation has which the officers and directors are not enforcing. In order to bring a derivative lawsuit on behalf of the corporation, a shareholder must first make a written demand to the board of directors requesting that the board take action to enforce the corporation’s right.

Once the shareholders make demand upon the board of directors, the board of directors needs to decide if they are going to have the corporation sue. Sometimes the board of directors will decide itself whether to sue or not, and other times it will put together a special litigation committee to make the decision. If the board decides not to sue, the shareholders can file a derivative lawsuit. However, the first thing the court will look at is whether the court should give deference to the board’s decision based on the business judgment rule. The business judgment rule applies when the board’s made a business decision, which was proper under the circumstances, not to sue. When the business judgment rule applies the court is prohibited from allowing the case to go forward.il

Philadelphia Business and Commercial Litigation Lawyers at Sidkoff, Pincus & Green Handle Derivative Action Lawsuits

The Business Lawyers at Sidkoff, Pincus & Green represent shareholders of a corporation in derivative action lawsuits.  If you need an experienced Philadelphia Litigation Lawyers, contact us online or call 215-514-0600.

Philadelphia Business Lawyers: Anticipatory Repudiation of Contracts

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Normally, contractual remedies flow from a breach of contract. However, remedies can also be available when anticipatory repudiation occurs. Anticipatory repudiation is when one party to a contract declares that they will not, or are unable to, perform their obligation under the contract prior to the obligation becoming due. In Pennsylvania, the declaration must be “an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so.”

When anticipatory repudiation occurs, the law provides the aggrieved party, the party that is not refusing to or unable to perform, remedies.   The aggrieved party can choose to wait and see if the other party will indeed perform under the contract. However, the aggrieved party could also seek remedies which are available for breach of contract, including damages or specific performance. Either way, the aggrieved party can also suspend his performance under the contract.’

The Philadelphia Business Lawyers of Sidkoff, Pincus & Green are Experienced in All Areas of Contract Law

Philadelphia Business Lawyers at Sidkoff, Pincus and Green represent clients in contract disputes.  If you need a qualified Philadelphia Contract Lawyer, contact us online, or call us at 215-574-0600.

Philadelphia Business Lawyers: Conditional Class Certification for Collective Actions

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Getting a conditional class certified in court requires the plaintiff to show by a preponderance of the evidence that the rest of the opt-in plaintiffs were “similarly situated.” In Jarosz v. St. Mary Med. Ctr., PICS Case No. 14-1560 (E.D. Pa. Sept. 22, 2014), an employee claimed she was never properly compensated for performing work during her meal break, and that this was a policy throughout her work. The court decertified the potential class because the circumstances showed this meal break policy was not centralized. Factors such as employees from other departments and positions, as well as the fact that meal breaks were scheduled differently depending on the department, aided the court in reaching its decision.

This court’s decision is important to show that just being employed by the same employer is not enough for additional plaintiffs to opt-in to a class action (collective action) suit. The “similarly situated” standard is focus in this court’s holding. The certification of a class action becomes inappropriate when individual issues would overcome issues that the class as a whole would have.

Philadelphia Employment Lawyers at Sidkoff, Pincus and Green are Experienced in All Areas of Business Litigation including Class Action Lawsuits

Philadelphia Business Lawyers at Sidkoff, Pincus and Green represent clients in all areas of Employment Law, and handle class action lawsuits.  For more information contact us online, or call 215-574-0600.

Philadelphia Business Lawyers: Increase in File Sharing Litigation

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A new report by Lex Machina, an intellectual property litigation research company, has brought to light just how prevalent file sharing litigation has become lately in the world of intellectual property and copyright law. The analysis, which spanned more than five and a half years from the first quarter of 2009 to the second quarter of 2015, studied the trends of copyright cases that were filed in United States district courts during that period. The year 2011 witnessed an upsurge in file sharing cases and three years later, in the summer of 2014, file sharing cases outnumbered all other copyright cases by a significant margin.

Who are the Parties?

The most prevalent plaintiffs in the recent increase in file sharing cases are those in the music, software, publishing and fashion industries. Broadcast Music has filed close to 1,000 lawsuits since 2009 and Sony/ATV Song has filed just over 500. Warner-Tamerlane Publishing, Songs of Universal and EMI Blackwood have filed about 1,100 lawsuits combined. The top defendants have been retailers, recorded book publishers and music publishers. Ross Stores has had to defend itself against file sharing lawsuits 181 times in the past five years. TJX Companies, Universal Music, Amazon.com and Burlington Coat Factory have been contested just under 300 times combined.

How are the Cases Decided and How Long Does it Take?

The report highlights that fair use, a concept in U.S. copyright law that allows limited use of copyrighted material without asking permission from the rights holder, is usually decided before a trial begins at summary judgment. About three out of four plaintiffs who won their cases did so at summary judgment. Of the lawsuits studied, the defendant succeeded in winning their case less than three percent of the time, but the plaintiff won their case 22 percent of the time, making them seven times more likely to have a successful outcome than the defendant in terms of file sharing cases. However, 64 percent of cases ended in settlement and almost 11 percent ended because of a procedural error by one of the parties.

The average time for a temporary restraining order was eight days, 1.2 months for a preliminary injunction and 7.5 months for a permanent injunction. In cases wherein a trial occurs, the average time it takes for a trial to begin is just over two years.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Clients in Intellectual Property Litigation Cases

Philadelphia business lawyers at Sidkoff, Pincus & Green have been fighting for our clients in complex business and copyright matters since 1958 – almost 60 years. Call 215-574-0600 or contact us online to talk to one of our knowledgeable Philadelphia copyright lawyers.

Philadelphia Employment Lawyers: Fair Labor Standards Act, Unpaid Wages, Class Action/Collective

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Employees should be paid for all the work performed by them for their employer. The Fair Labor Standards Act (“FLSA”) requires employers to pay employees for all hours worked. In addition, the FLSA requires compensation at a rate of at least 1.5 times an employee’s regular rate of pay, whenever that employee has worked over 40 hours in one workweek. Under the FLSA, employers must keep wage and hour records. As long as employees meet the requirements to be covered, FLSA gives employees a cause of action when they have been improperly paid for their performance. When an employer violates the FLSA and has employees and has locations in multiple states, employees in similar situations may bring a collective action. Normally these claims arise from overtime work that is unpaid, but in the following case, the claim arises from unpaid work performed before work.

In a recent case, plaintiffs were granted conditional certification of their collective action for a policy that required them to perform pre-shift work without any compensation. Tompkins v. Farmers Ins. Exch., PICS Case No. 15-1390 (E.D. Pa. Aug. 18, 2015). The court held that the employees satisfied their burden to show employees in 49 states were performing unpaid pre-shift work and did not have to show there was any written policy or procedure by the employer. The court further discussed that certification of a collective action is a two-tier process. The first-step is being able to show the proposed employee group can be determined similarly situated, to allow discovery on the issue. Once discovery is complete, the second-step by the court is to decide if the employee group is in fact similarly situated.

The Philadelphia Wage and Hour Lawyers at Sidkoff, Pincus & Green Represent Workers Who Have Not Received Proper Overtime Compensation

The Philadelphia Employment Lawyers at Sidkoff, Pincus & Green help those who have been inadequately paid for their overtime work, we handle class action lawsuits.  For more information contact us online, or call 215-574-0600 to schedule a consultation.

Philadelphia Business Lawyers: Fraudulent Misrepresentation as a Basis for Punitive Damages

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To establish fraudulent misrepresentation, a plaintiff must prove: (1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation and (5) damage to the party defrauded as a proximate cause. Yenchi v. Ameriprise Fin., Inc., 2015 Pa. Super 195 (Sept. 15, 2015). Scienter, or the maker’s knowledge of the untrue character of his representation, is a key element in finding fraudulent misrepresentation. See Restatement (Second) of Torts § 526, comment a. Fraud must be proven by clear and convincing evidence. Weston v. Northampton Pers. Care, Inc., 62 A.3d 947, 960 (Pa. Super. 2013).

[A] cause of action for misrepresentation can support a claim for punitive damages. However:

Punitive damages will lie only in cases of outrageous behavior, where defendant’s egregious conduct shows either an evil motive or reckless indifference to the rights of others. Punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.il

The Philadelphia Business Lawyers at the Law Firm of Sidkoff, Pincus & Green are Well Versed in all Areas of Business Litigation

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green can help clients affected by fraudulent misrepresentation.  To speak to an experienced lawyer contact us online, or call 215-574-0600.

Philadelphia Business Lawyers: Professional Negligence in Pennsylvania

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When the alleged negligence is rooted in professional malpractice, the determination of whether there was a breach of duty comprises two steps: (1) a determination of the relevant standard of care; and (2) a determination of whether the defendant’s conduct met that standard. Catlin v. Hamburg, 56 A.3d 914, 920 (Pa. Super. 2012). Additionally, in a professional malpractice action, the determination of whether there was a breach of duty requires the plaintiff to show that the defendant’s conduct fell below the relevant standard of care applicable to the performance of the professional services at issue. Merlini ex rel. Merlini v. Gallitzin Water Auth., 934 A.2d 100, 104 (Pa. Super. 2007). “In most cases, such a determination requires expert testimony because the negligence of a professional encompasses matters not within the ordinary knowledge and experience of laypersons.” Id.

 A complaint asserting negligence against a licensed professional must identify each defendant against whom the plaintiff is asserting a professional liability claim. Pa. R.C.P. § 1042.2. “In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff … shall file … within sixty days after the filing of the complaint, a certificate of merit signed by the attorney[.]” Pa. R.C.P. No. 1042.3(a).

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Those Accused of Professional Negligence

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green are experienced in complex litigation and represent clients in all areas of business law, including professional malpractice.  For more information contact us online, or call 215-574-0600.

 

 

Philadelphia Business Lawyers: General Contractor Insurance Policies

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Insurance Companies Not Held Liable for Shoddy Workmanship by Home Contractors under General Contractor Insurance Policies

In Pennsylvania, Courts will not hold insurance companies that provide general contractor insurance policies liable for a contractor’s shoddy workmanship. In Ryan Homes, Inc. v. Home Indem. Co., 647 A.2d 939, 942 (Pa. Super. 1994) the Superior Court held that general liability policies provide coverage for work or product that actively malfunctions “causing injury to an individual or damage to another’s property.”

Further, the insured must assume the risk of the quality of its product and its work, and to hold otherwise “would effectively convert the policy into a performance bond or guarantee of contractual performance and result in the coverage for the repair or replacement of the insured’s own faulty workmanship. This means homeowners who can prove negligence in court will have to attempt to collect from contractors themselves.

 

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Homeowners Whose Property Has Been Damaged by Home Contractors

The Philadelphia Business Lawyers at Sidkoff, Pincus & Green can help if your property has been damaged by a contractor’s shoddy workmanship.  For more information contact us online, or call today at 215-574-0600.