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.

 

 

Philadelphia Business Lawyers: Association Transactions Act

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A major overhaul of Pennsylvania’s entity laws went into effect on July 1, 2015. The Association Transactions Act, which is similar to the Model Entity Transactions Act, replaces or reconfigures much of the dated legislation contained in Title 15, Corporations and Unincorporated Associations, and streamlines applicable provisions for more modern entity types. The Act consolidates and clarifies regulations surrounding entity transactions and makes it easier for all entity types to execute these transactions.

Specifically, the Act modifies or creates legislation to oversee five types of transactions: mergers, conversions, interest exchanges, divisions and domestication. Previously, the types of entities eligible for some of these transactions were limited, but the Act gives businesses much more flexibility. Simplifying these costly and time-consuming transactions is a huge win for Pennsylvania businesses.

This is a particular benefit to businesses looking to convert their entity type, who previously would have had to either dissolve or merge with another entity and reform as a different type. Divisions have also become less complicated, as spin-off entities no longer need to be the same type as the parent entity. Divisions are useful for businesses looking to attribute assets or liabilities to separate subsidiaries, but they are still only available in certain jurisdictions.

New Laws Beneficial for Businesses in Pennsylvania

In addition to the transaction governance laws, the Act also introduces several new types of filings that will be available to businesses. A Statement of Abandonment allows a document given to the Department of State to be withdrawn before taking effect. A Statement of Conversion can be used to convert an existing association to a different type of association. A Transfer of Registration is helpful to registered foreign entities, allowing them to easily merge with non-registered entities or convert their entity type. The Statement of Interest Exchange remains functionally the same as the previous version of the form, but it can now be used for any type of entity.

Existing Pennsylvania businesses will benefit from the clear, consolidated framework for various types of transactions, but the Act could also help to bring new business to the state. The cost-saving and red tape-cutting measures in the Act will make Pennsylvania more attractive to businesses. Provisions in the Act extend the ability to domesticate an entity across all entity types, which will allow businesses to move into Pennsylvania more easily.

Philadelphia Business Lawyers at the Law Offices of Sidkoff, Pincus & Green Help Businesses Achieve Their Transaction Goals

If you are looking into transaction options for your business, call Philadelphia business lawyers at the Law Offices of Sidkoff, Pincus & Green. Our legal team has the knowledge and experience to guide you through the process, including reviewing all applicable legislation and helping you choose the strategy that is right for your business needs. With offices conveniently located in Center City, Philadelphia, we serve businesses both in the Philadelphia area and across the country. Call us today at 215-574-0600 or contact us online to review your options with a qualified business transaction lawyer.

Philadelphia Wage and Hour Lawyers Discuss Lawsuit Filed Against Movie Company for Minimum Wage Violations

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A Montgomery County resident and former employee of Movie Tavern Partners filed a class action lawsuit against the company citing minimum wage violations. The ex-employee filed for herself and on behalf of other employees who were treated similarly. The lawsuit cites violations of the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act.

According to details of the complaint, the plaintiff worked as a runner for the company’s Collegeville location from March to August of 2014. The suit says that because the company applied a tip credit against their wages, they were not paid the mandated minimum wage for the hours they worked.

The law states that an employer may pay its employees less than minimum wage if the customer tips combined with the tip credit wage equals at least minimum wage. The employer must also make the employees aware of its intention to pay a tip credit wage so that the employees are aware of what their salary will be. According to the lawsuit, the company did not notify its employees, and they only paid the tip credit wage.

The class action lawsuit seeks unpaid wages, unpaid overtime, liquidated damages, attorney fees, court costs and other costs that the court deems appropriate.

Philadelphia wage and hour lawyers at Sidkoff, Pincus & Green, P.C. provide experienced, dedicated legal counsel for employees experiencing wage and hour issues and violations of the FLSA by their employer. For more information, call our Philadelphia FLSA lawyers at 215-574-0600 or contact us online.

Philadelphia Employment Lawyers: Executive Order to Provide Sick Leave for Federal Contractors

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Federal contractors will soon be entitled to paid sick leave, including paid leave for family care. President Obama recently signed an executive order that will guarantee paid sick leave to approximately 300,000 employees. In an effort to attract and retain dedicated, talented employees, access to paid sick leave will provide a more comprehensive benefits package to federal contractors.

According to the executive order, employees can earn up to seven days of paid time off each year. This paid leave can be used for issues including, but not limited to a medical condition, caring for a family member, domestic violence or time needed to seek counseling or legal representation.  Individual employers may decide to provide more than seven days, but this is the minimum amount of days federal contractors must provide its employees.

For more information about how this executive order will affect your employee benefits, call Philadelphia employment lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.