Philadelphia Trademark Attorneys: LUKOIL Sues Philadelphia Gas Station

By ,

LUKOIL North America has filed a lawsuit against an Allentown gas station for trademark infringement and trade dress infringement, alleging that the business has been falsely operating as a LUKOIL franchise. The fuel company is seeking to recover damages and attorney fees from defendants R.K. Keystone Mobile Mart Inc., Gurmeet Singh, A Airport Texaco Inc., and Swapnesh Sharma who own and operate a former LUKOIL station at 3575 Airport Road in Allentown, PA.

The suit filed on April 27 states that “To date, defendants have merely removed the LUKOIL sign, and the tear drop, leaving intact the well-known LUKOIL trade dress including the prominent use of the primary colors red and white, as well as the sergeant stripes on the canopy”.

Going further, LUKOIL alleges that the defendants ““have been, and continue to be, infringing the LUKOIL trademarks and trade dress at the Allentown station by falsely selling unbranded motor fuels under the LUKOIL trademarks and distinctive LUKOIL trade dress. Such continuing, knowing and willful infringement creates a likelihood of confusion among the consuming public by deceiving them into believing the defendants’ service station dispenses genuine LUKOIL brand motor fuels and other service station goods and services and that the service station is associated and connected with LUKOIL as an authorized retailer.”

The case will be heard by the U.S. District Court for the Eastern District of Pennsylvania.

Trademark attorneys in Philadelphia at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of business law, including trade mark infringement.  We represent clients throughout Pennsylvania and New Jersey. Call us at 215-574-0600 to schedule a consultation or submit an online contact form.

 

Philadelphia Employment Lawyers: Woman Fired Following Struggle with Alcholism

By ,

Delaware resident, Mary McGee has filed suit against her former employer Exelon Generation Co. alleging unlawful discrimination and retaliation in response to her struggle with alcoholism in 2014.

According to the complaint, McGee was instructed not to return to work for 24 hours after being hospitalized in November after fainting at work while under the influence of alcohol. The day after, McGee was administered a drug alcohol test, which she failed with a BAC of .01. After completing an outpatient treatment program and producing clean test results, McGee was not given a return-to-work date and she subsequently relapsed. McGee then voluntarily admitted herself into a rehabilitation center and was cleared to return to work in early May of 2014.

The lawsuit, filed in U.S. District Court for the District of Pennsylvannia, states that McGee was then terminated on July 16 for “violating the company’s code of ethics”. She alleges that Exelon did not provide accommodation for her disability and was therefore wrongfully terminated. McGee is now seeking injunctive action against Exelon along with punitive damages, compensatory back and front pay with benefits, attorney fees and court costs.

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of employment law, including wrongful termination. Call us today at 215-574-0600 to schedule a consultation or submit an online contact form.

Philadelphia Commercial Lawyers: Angie’s List Sues Amazon

By ,

Angie’s List, a US-based paid subscription supported website containing crowd-sourced reviews of local businesses, has sued Amazon Local alleging theft of intellectual property. All together, the federal lawsuit suit levels a whole host of charges against Amazon, including misappropriation of trade secrets, theft, computer trespass, civil conspiracy and violations of the Computer Fraud and Abuse Act. According to the complaint, Angie’s List alleges that Amazon Local executives stole provider lists by signing up as members of the Angie’s List sight and copying provider profiles, member reviews, and other important proprietary information.

Angie’s List was founded in 1995 to create a national listing of home repair providers and other businesses where members that paying members can browse through and evaluate. In 2014, the company reported nearly $80 million in revenue. This past year, Internet retailing giant Amazon entered the home services procurement market through their subsidiary, Amazon Local. According to Angies List, “”Amazon Local has chosen not to devote the necessary time, resources and effort to compete legitimately with Angie’s List. … Instead, Amazon Local and its employees have chosen the shortcut of surreptitiously accessing and misappropriating Angie’s List’s proprietary information … through dozens (if not more) of Angie’s List membership accounts that were fraudulently obtained and misused’.

In the lawsuit, Angie’s Lists states that their membership agreement “”explicitly prohibits the use of Angie’s List’s accounts and information for commercial purposes”, contending that a dozen Amazon Local employees violated that contract. One of the defendants, Daniel Malamud, signed up for Angie’s List just after taking a job with Amazon Local. As an account executive for South Jersey, Malmud reviewed information for hundreds of service providers throughout the Philadelphia Area.

In a brief statement to the press, Angie’s List spokeswoman Cheryl Reed stated, “We welcome competition, but on fair and legal grounds.”

At Sidkoff, Pincus & Green, our dedicated team of Philadelphia commercial lawyers assist clients in a wide range of complex litigation matters. Our offices are located in Philadelphia and we represent clients throughout Pennsylvania and New Jersey. Call 215-574-0600 to schedule a consultation or submit an online contact form.

 

Philadelphia Business Lawyers: Breach of Contract

By ,

To establish a breach of contract, there must be a legally binding contract (agreement) or bargained-for exchange that is then not honored by one or more of the parties to the contract. If one party fails to perform the contract in its entirety, or prevents the performance of the contract by the other party, the situation is easier to understand. The situation becomes more complex when the argument is over something subjective in nature, such as the quality of product, or the timing of work. The party who breaches the contract by not performing or improperly performing opens a possible claim for damages by the other party. When the contract is breached, the non-breaching party is relieved of his commitments under the contract.

The court in Giacone v. Virtual Officeware, LLC, 2014 WL 7070205, at *17 (W.D. Pa. Dec. 12, 2014) determined that a new sales strategy deployed at Virtual Officeware, LLC (“VOW”) resulted in a breach of contract. The Plaintiff was demoted during a restructuring of VOW’s sales department and lost benefits that accompanied his title, then forced to resign once he was no longer receiving compensation that was promised by his contract. VOW contended that their new strategy was not a breach because the employment agreement came before the restructuring of the department. The Defense also argued the commission terms in the agreement were only attached due to a mutual mistake.

The court found the employment agreement was a valid contract, which was breached by the Defendant. The violation caused the Plaintiff to lose his title, repeat customers, and commissions. Judgment was entered in favor of the Plaintiff in the amount of $883,871 for lost wages and $220,968 in liquidated damages.

Philadelphia commercial contract lawyers at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of business law and commercial litigation. Our dedicated team of commercial contract attorneys in Philadelphia assist clients in a wide range of complex litigation matters, including breach of contract. Call us at 215-574-0600 to schedule a consultation or submit an online contact form.

Philadelphia Business Lawyers: Shareholder Rights

By ,

Recognized as the world’s largest asset management company, BlackRock is urging its portfolio companies to allow shareholders to nominate directors, a process also known as proxy access.  While BlackRock is leading the way in this most recent corporate governance campaign, the company has no plans to extend this right to its own investors at this time. This has put the company at odds with some of its leading shareholders, as well as its own corporate governance group.

BlackRock has become a leader in investor opinion, with high financial stakes in the majority of the leading companies in the United States. BlackRock has been proactive in their efforts to give shareholders a meaningful voice in corporate board elections. By engaging the public and private sectors, the company has significant influence on the voting process at annual meetings and has the ability to unseat entrenched board members and ensure a diverse presence in the boardroom.

Proxy Access to Shareholders

Three of BlackRock’s largest investors – Norges Bank Investment Management, Norway’s sovereign wealth fund, TIAA-CREF and T Rowe Price – support proxy access. In fact, T Rowe Price may grant director nomination rights to its shareholders within the year.  In March, Norges Bank will likely be introducing proxy access to its portfolio companies. A spokeswoman for Norges Bank said that proxy access will be on their agenda for all future dealings with corporations in the United States. She added that United States companies are expected to take a leadership role in proposing proxy access when deemed appropriate.

According to the head of BlackRock’s Americas corporate governance team, proxy access is a shareholder right, one that is essential to ensuring director accountability. That said, BlackRock believes proxy access should only be granted to shareholders if a company demonstrated serious corporate governance failings.  Maintaining the right to nominate directors helps to keep board members aware of shareholder concerns.

In most cases, BlackRock has voted in favor of director nomination rights for those shareholders who maintain more than three percent of a company for more than three years.  This may not apply to small companies or if a shareholder has too much power.

Opponents of proxy access argue that the companies are in the best position to nominate directors. Others say that there are technical difficulties surrounding the verification of shareholders’ qualifications. BlackRock has said that proxy access is currently not a topic of priority for their shareholders, although they intend to have an ongoing dialogue with their shareholders about this governance issue, one that continues to evolve.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Clients Facing Shareholder Disputes

Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of business law and commercial litigation. Our dedicated team of commercial contract attorneys in Philadelphia assist clients in a wide range of complex litigation matters, including shareholder disputes. Our highly reputable Philadelphia trial lawyers are conveniently located in Philadelphia and we represent clients throughout Pennsylvania and New Jersey. Call 215-574-0600 to schedule a consultation or submit an online contact form.

Philadelphia Wage and Hour Lawyers: Walmart Violation of Minimum Wage Laws

By ,

A federal judge ruled in May that Walmart’s pay policies regarding truck drivers violate California labor laws. Walmart truck drivers filed a lawsuit claiming that they were not paid at least minimum wage for all time spent working. According to Walmart’s pay policies, truck drivers are paid by mileage and activity; however, drivers are not compensated hourly for time spent during inspections, rest breaks, fueling, weighing cargo, and completing paperwork.

Walmart contends that drivers were compensated by discretionary pay for other activities and that the company is not required to pay truck drivers for layover time because drivers are not under Walmart’s control during layovers. US District Judge Susan Illston ruled that drivers are under Walmart’s control during layovers due to Walmart policies which specify designated locations for layovers; therefore, Walmart truck drivers are entitled to collect at least minimum wage for time spent on layovers. Walmart may have to pay its truck drivers $100 million in back pay to comply with California minimum wage laws.

Philadelphia wage and hour lawyers at Sidkoff, Pincus & Green represent clients in all matters concerning employment law including wage and hour disputes, FLSA violations, discrimination claims, overtime claims and more. Our team is comprised of highly skilled Philadelphia business lawyers adept in trial litigation and complex negotiations. Contact Sidkoff, Pincus & Green online or call 215-574-0600.

Philaelphia Business Lawyers: Bad Faith

By ,

Punitive damages and attorneys’ fees may be awarded for Bad Faith claims in Pennsylvania. An insurance company acts in bad faith when it does not have a reasonable basis for denying benefits under an insured’s policy and the insurance company knows or recklessly disregards its lack of a reasonable basis in denying the claim. MGA Ins. Co. v. Bakos, 699 A.2d 751, 754 (Pa. Super. Ct. 1997). Additionally, the court may award interest on the amount of the claim from the date in which the claim was made in an amount equal to the prime rate of interest plus 3%. Id.

In Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 379 (Pa. Super. 2002), the Court held that Nationwide acted in bad faith by failing to adequately evaluate Plaintiff’s injuries after a car crash. The Superior Court upheld the Trial Court’s findings that Nationwide “disregarded Plaintiff’s medical records, conducted no independent medical examination, and made no reasonable evaluation based on Plaintiff’s presentment.” For these reasons, the Superior Court affirmed the lower court’s awards for punitive damages and attorneys’ fees.

Philadelphia trial lawyers at Sidkoff, Pincus & Green represent clients throughout Pennsylvania and New Jersey. Call 215-574-0600 to schedule a consultation or submit an online contact form.

Philadelphia Wage and Hour Lawyers: Overtime Pay Dispute

By ,

Two meat-delivery drivers have filed a class action suit against their employer, alleging they were denied overtime pay in violation of the Fair Labor Standards Act (FLSA.) The employer argues that they were not obligated to pay the drivers overtime wages, because they fell into the motor carrier exemption. The defendants brought the case before a New York judge for summary judgment and were subsequently denied the motion, citing issues of fact.

The men worked as delivery drivers for a New York-based meat distribution company. Their primary duties were transporting products stored at the New York warehouse for delivery to in-state customers. Many of the products stored at the warehouse were ordered from outside of New York. The most significant fact being argued in the case was whether the men were truly engaged in interstate commerce and therefore fell into the motor carrier exemption for overtime.

Exemptions to FLSA Overtime Rules

Exemptions to the FLSA’s rules on overtime applies to drivers, driver’s helpers, loaders, and mechanics who are within the authority of the Secretary of Transportation and whose duties affect the safety of operation of motor vehicles in interstate commerce. The interstate commerce requirement is satisfied if the goods being transported within the borders of one state are involved in a practical continuity of movement in the flow of interstate commerce. Simply put, if the company received goods from out of state with a fixed intent that they be transported to a specific customer who had ordered the item, regardless of whether it was stored temporarily intrastate, the motor carrier exemption applies. However, if the final destination of items brought in from out of state is not known at the time of delivery to the warehouse, then the exemption does not apply.

Determining when Intrastate Movement is considered Interstate Movement

An earlier Supreme Court decision created a framework for determining whether intrastate movements are “interstate” for the purposes of the motor carrier exemption. In that case, the court discussed three circumstances when goods were brought from out of state but sold and distributed to customers within the state.

  1. Goods purchased by the wholesaler or distributer upon order of a customer with the definite intention that they be carried at once to the customer.
  2. Goods obtained by the wholesaler or distributer to meet the needs of specific customers in agreement with an understanding, contractual or otherwise, although not for immediate delivery.
  3. Goods are brought to the warehouse in anticipation of customer need, rather than upon prior orders or contracts.

The court held that the goods in the first two categories remain in interstate commerce until the time they are delivered to the retail customers. Goods in the third category, however, can only be considered interstate commerce if there is specific evidence relating a product to a particular customer.

The owner of the meat distribution company presented the court with a list of approximately 100 special orders from out-of-state suppliers to be delivered to specific customers in-state. The judge declared the document inadmissible, on the grounds that it was lacking in sufficient detail including dates and costs, and did not appear to have been made in the normal course of business. Summary judgment was denied and the case will proceed to trial at a later date. Attorneys for the plaintiffs estimate that their clients are owed more than $60,000 in overtime pay from the defendants.

Philadelphia Overtime Lawyers at Sidkoff, Pincus & Green handle Overtime Disputes

Philadelphia overtime pay lawyers of Sidkoff, Pincus & Green are highly skilled business and employment litigators with experience representing employees with overtime claims under the Fair Labor Standards Act. Call 215-574-0600 today or submit an online contact form to arrange a consultation with one of our qualified Philadelphia overtime dispute lawyers. Our office is located in Philadelphia, Pennsylvania and we represent clients throughout the Philadelphia and South Jersey regions.

Philadelphia Commercial Lawyers: Breach of Fiduciary Duty

By ,

To establish a breach of fiduciary duty in Pennsylvania, a party must first demonstrate the existence of a fiduciary relationship. A fiduciary relationship exists between two parties when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relationship. Restatement (Second) of Torts § 874, cmt. a (1979).

The Court in Edelstein & Diamond, L.L.P. v. Orloff, 2005 WL 1648191, at *2 (Pa. Com. Pl. June 29, 2005) held that Plaintiff failed to demonstrate a fiduciary relationship with Defendant because it had merely hired Defendant to manage files. A fiduciary relationship must go beyond “mere reliance on a superior skill”, but rather be a relationship characterized by “overmastering influence” on one side and “weakness, dependence, or trust, justifiably reposed” on the other side. Fiduciary relationships are marked by a disparity in power which could give rise to a potential abuse of said power. The Court found no such relationship in this case, as Defendant was not in a position of power over Plaintiff.

For more information, call Philadelphia Commercial Lawyers at Sidkoff, Pincus & Green at 215-574-0600 to schedule a consultation or submit an online contact form.

 

Philadelphia Business Lawyers Discuss Pop Star’s Win in Passing Off Claim

By ,

Another win for pop-star Rihanna, as a UK Court of Appeals upheld an earlier court’s decision to prohibit a T-shirt maker from the unauthorized use of the singer’s image. The original lawsuit, filed by Rihanna in 2012, claimed that fashion retailer, Topshop, misrepresented the celebrity’s endorsement when it began selling t-shirts bearing her image. The shirts were printed with a photograph of Rihanna taken during a live video shoot for one of her albums. The picture was taken by an independent photographer who licensed its use to Topshop, but the singer never gave her consent. The court decided Topshop’s action amounted to “passing off” – illegally exploiting an unregistered trademark.

Generally, aside from privacy issues, there are few laws in the UK that protect celebrities from having their pictures published without their consent, such as there are in the U.S. Celebrities who wish to control the reproduction of their image must rely on some other cause of action, such as a breach of contract, infringement of copyright or, as in Rihanna’s case, passing off.

“Passing off” refers to a misrepresentation of endorsement. Topshop had made considerable efforts to emphasize its relationship with certain pop-stars, and with Rihanna in particular. The company created a contest in 2010 where the prize was a personal shopping appointment with Rihanna at Topshop. They also launched a significant publicity campaign around a visit the star made to the store in early 2012. In regard to the unauthorized t-shirts being sold by Topshop, Rihanna argued that buyers were likely to believe that the product was endorsed by her, and would purchase the shirt based on that false belief. Moreover, she argued that this would be damaging to her goodwill.

Throughout the world, Rihanna is regarded as a fashion icon. Her fashion activities include promoting Gucci and Armani clothing and designing clothes and endorsing products for River Island, as well as some previously authorized goods sold by Topshop. Rihanna’s reputation as a musical artist and style leader has earned her goodwill rights in not only the music industry, but in the fashion world as well. She argued that damage to her goodwill would lead to a decline in sales in her marketing business, and a loss of control over her reputation in the fashion industry. The court agreed and banned Topshop from selling the shirts without informing prospective buyers that the product had not been approved or authorized.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Clients in Cases of Intellectual Property and Trademark Infringement

Philadelphia commercial business lawyers at Sidkoff, Pincus & Green have experience handling complex litigation involving rights of publicity, as well as copyright and trademark disputes. Our office is located in Philadelphia and we represent clients throughout Pennsylvania and New Jersey. To discuss your case with one of our highly qualified Philadelphia business lawyers, call 215-574-0600 today or contact us online.