Category: Business Law & Commercial Litigation

Pennsylvania Supreme Court Rules Discharged Predecessor Law Firm Can Collect Fees from Succeeding Firm in Wrongful Death Action

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The Pennsylvania Supreme Court recently ruled that predecessor law firms who are discharged by a client can recover damages in quantum meruit from a successor law firm that takes over the case. In Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247 (Pa. 2016), the case involved a dispute between two law firms about attorney’s fees earned in a wrongful death litigation settlement. Plaintiff, Meyer, Darragh, Buckler, Bebenek & Eck law firm, (“Meyer”) brought a breach of contract and quantum meruit action against Defendant, Law Firm of Malone Middleman (“Middleman”).

In the case, an attorney named William Weiler, Jr. formally represented the Eazor estate in March 2005. Later that year, Weiler became associated with Meyer, and entered into a written employment agreement acknowledging that “any and all legal work performed by him will be deemed work on behalf of the firm.” Weiler brought to the firm the Eazor estate litigation, and along with other Meyer attorneys and staff, worked on the case over the course of 19 months. 2 years later, Weiler resigned from Meyer and agreed Meyer would receive two-thirds of attorney’s fees arising from the Eazor estate litigation. Weiler then subsequently became affiliated with Middleman. The Eazor estate discharged Meyer, and entered into a contingency fee agreement with Middleman without addressing payment or protection of attorney’s fees to Meyer. Middleman ultimately obtained settlement for the Eazor estate. Meyer filed this action claiming entitlement to two-thirds of attorney’s fees.

The court ruled that Meyer could not recover under a breach of contract claim because Middleman, as the successor firm, was not bound by the predecessor firm’s employment agreement with Weiler. However, Meyer was not deprived of its right to recover under quantum meruit the proper amount for the services which they had rendered for the litigation.

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

Philadelphia Sues Wells Fargo Over Predatory Lending Practices

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On May 15, 2017, Philadelphia sued Wells Fargo for alleged predatory lending in violation of the Fair Housing Act of 1968. The lawsuit comes two weeks after the Supreme Court ruled that cities can sue banks that possibly could have targeted minorities with bad loans. The city’s lawsuit, filed in the U.S. district Court in Philadelphia, says Wells Fargo purposefully pitched high-risk loans to black and Latino borrowers, though they were eligible to apply for better loans. The lawsuit says Wells Fargo was aware of this imbalance, and even encouraged employees to take advantage of it.

The claims are similar to those made by the city of Miami, which the U.S. Supreme Court ruled earlier this month that Miami could proceed with its lawsuits against banks for targeting minority customers. Like Philadelphia’s lawsuits, Miami alleged that banks unfairly targeted minority borrowers with bad loans. Then after the financial crisis, these customers, and even entire communities, saw unequal rates of foreclosure. Miami claimed that the discriminatory lending by Bank of America and Wells Fargo, caused undue financial harm on the city, increased segregation, and lowered property values. The Supreme Court’s decision was important because this is the first time a city representing entire communities has sued under the FHA. Miami’s case has returned to a federal appeals court in Atlanta, which will decide how much proof Miami needs to show in order to demonstrate the banks knowingly discriminated against communities. That decision, too will likely set precedent for other cities, as Los Angeles, Oakland, Baltimore, and Memphis have all filed similar lawsuits.

In its lawsuit, Philadelphia said an analysis found that more than 23 percent of loans to minority customers were high-risk or high-cost, while only 7.6 percent of white customers were given similar terms. Philadelphia has asked Wells Fargo to end these practices, and is seeking monetary damages from lost taxes, lowered property values, and compensation for increased segregation.

Philadelphia Commercial Lawyers of Sidkoff, Pincus & Green P.C. Defend Against Predatory Lending Practices

Attorneys at Sidkoff, Pincus & Green P.C. represent those affected by predatory lending practices. To schedule a consultation with an experienced Philadelphia commercial lawyer, call 215-574-0600 today or contact us online. From our Center City Philadelphia office, we represent clients throughout Pennsylvania and South Jersey.

Court Ruling on Hague Service by Mail

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The United States Supreme Court recently issued a ruling on what constitutes effective service under the Hague Service Convention, resolving a long-standing circuit split. The case was brought before the Court after a U.S. employer tried suing a former employee after she moved out of the country. In the ruling, the Court determined that the Hague Service Convention does not prohibit service of process by mail.

A Texas-based company Water Splash, Inc. filed a lawsuit against one of its former employees, alleging unfair competition, tortious interference, and conversion. The employee, a resident of Quebec, Canada, had begun working for a competitor of Water Splash before leaving the company. Water Splash served the employee via mail, and when she failed to appear, a default judgment was entered against her. She appealed the default judgment on grounds that service by mail is not valid under the Hague Service Convention. The Appellate Court agreed, and she prevailed before the case made its way to the Supreme Court.

Pursuant to the Hague Service Convention, every country must designate a central authority where requests for service of process are to be sent. When a request is received, the designee must arrange for service and provide a certification of service to the requester.

The Supreme Court, resolving a long-standing federal district and circuit split, found that this rule does not serve to render other means of service ineffective. Two states can agree that other methods of service will also be acceptable. In rendering its decision, the Court analyzed the contextual background of the provision at issue, and also looked beyond the four corners of the Hague Service Convention—taking the drafting history, and views of the other signatories into consideration.

Some of these other sources stated that Article 10 permits service by direct mail, provided the receiving state does not object. Moreover, multiple foreign courts have held that service by mail is appropriate and effective.

After a holistic review, the Court determined that the underlying purpose of the Convention was to ensure that documents served abroad are brought to notice of the addressee in a reasonable period of time. The Court ultimately remanded the case, so that the Texas courts could determine whether Texas law authorizes service by mail.

Some view this decision as a setback, as the holding effectively rubber stamps service of process on foreign corporations by mail. However, the decision may not be as sweeping as it appears. The Supreme Court declined to address the issue as to whether the mailed documents must be translated into the intended recipient’s national language. The Hague Service Convention requires such a translation when service is affected through the centralized designated authority. It is unclear whether that holds true when service is affected via mail.

The issue of translation will also be decided by the Texas courts on remand. Service without the appropriate translation may still be a valid argument against proper service, even if the mail was received, read, and understood.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Business Disputes

Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. represent clients in all types of business litigation, including litigation against foreign corporations. To learn more about how we can help you, call us today at 215-574-0600 or contact us online.

Agreements to Arbitrate

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The Third Circuit recently decided a case in which the District Court had vacated an arbitration award after finding that the parties to the contract at issue had not agreed to arbitration. In Aliments Krispy Kernels, Inc. v. Nichols Farms, the plaintiff, Aliments had attempted to confirm an arbitration award related to the sale of pistachios. The contract dispute centered on a brokered deal between the buyer, Aliments, and the seller, Nichols.

Upon denial of Aliments’ credit application, Nichols requested payment before delivering the pistachios, instead of thirty days from delivery. Aliments claimed that advance payment is inconsistent with the parties’ previous practices and with industry standards and eventually bought pistachios from another vendor at a higher price. Aliments then initiated arbitration proceedings to recover the difference in cost and was awarded $222,100.

When Nichols refused to pay, Aliments brought the case before the District Court seeking enforcement of the arbitration award. The court found there was a lack of evidence as to an agreement or sales confirmation between the parties and agreed with Nichols that it did not agree to arbitrate, accordingly granting Nichols’ petition to vacate the award. Aliments appealed to the Third Circuit, which examined the legal standard applied by the District Court and whether the parties entered into an agreement to arbitrate as a matter of law.

The Third Circuit stated that its previous applications of the standard requiring an express and unequivocal agreement to arbitrate were confusing and outdated. Instead, the Third Circuit instructed that when determining if a party is compelled to submit to arbitration, the courts should decide whether there was a valid agreement between the parties to arbitrate by applying ordinary state law principles governing the formation of contracts.

The Third Circuit concluded that the District Court properly used the express and unequivocal standard in deciding whether to confirm the arbitration award only to the extent that there were no genuine issues of material fact regarding the formation of the contract. However, it disagreed with the lower court’s finding that there were no genuine issues of material fact; specifically, that there was no evidence that an agreement or sales confirmation was entered and that there was no evidence that Nichols intended to arbitrate.

The Third Circuit stated that there are remaining issues of fact such as – among several other issues – whether a binding contract was created before Nichols received Aliments’ credit application. Therefore, the case was vacated and remanded for further proceedings due to the Court’s finding that multiple issues of material fact are in existence.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Parties in Breach of Contract Disputes

At Sidkoff, Pincus & Green, our Philadelphia business lawyers handle even the most complicated breach of contract disputes. Call us at 215-574-0600 or contact us online today to arrange a confidential consultation in our Philadelphia offices.

Philadelphia FINRA Lawyers: UBS Seeks to Overturn FINRA Ruling

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Swiss financial wirehouse UBS is seeking to vacate a Financial Industry Regulatory Authority (FINRA) ruling and $18.5 million award on the basis that two out of three arbitrators on the case were not impartial. UBS claims that one of the clients involved in the case went against their financial recommendations, a decision leading to substantial losses. However, the crux of USB’s case to overturn the award is their assertion that arbitrators failed to disclose concerning personal and professional financial details prior to their involvement in the case.

The case was initially decided in favor of the plaintiffs, a married couple, who won damages based on UBS sale of closed-end funds of Puerto Rican bonds, claiming unsuitability and breach of fiduciary duty. The claimants also accuse UBS of violating Puerto Rico’s own financial statutes. The couple initiated their arbitration a year after the Puerto Rican bond market collapsed. They allege that UBS misled clients about the potential vulnerability of their investments, while artificially inflating the local demand for bonds.

A FINRA three-member arbitration panel found that UBS failed in their obligation to these clients. FINRA is a not-for-profit organization dedicated to ensuring the integrity of broker-dealer industry and protecting investors. FINRA is not a part of the government, but is authorized by Congress. FINRA supervises more than 635,000 brokers and 3,900 securities firms.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green Resolve the Toughest Business Law Cases

Philadelphia FINRA lawyers at Sidkoff, Pincus & Green bring experience and knowledge to business law cases. If you are seeking representation in a FINRA matter, call our Philadelphia offices today at 215-574-0600 or contact us online to discuss your situation.

Philadelphia Wage Dispute Lawyers: Third Circuit Rules That Overtime Class Action Cannot Proceed In Arbitration

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Recently, the Third Circuit weighed in on the issue of whether it is up to courts or arbitrators to decide if a class action lawsuit should be adjudicated in court, or in an arbitral forum. This case also dealt with the issue of whether an employment agreement that is silent on the issue of class arbitration permits employees to proceed on a class-wide basis on that basis. In Opalinski v. Robert Half International, the 3rd Circuit sided against the plaintiffs who wished to proceed on a class wide basis in arbitration. The case involved employees of the placement firm, Robert Half.

The plaintiffs were two former staffing managers at Robert Half in New Jersey. The men claim that they were improperly classified as exempt from overtime pay, and wrongfully denied such pay in violation of the Fair Labor Standards Act (FLSA). The defense argued that when the men signed their employment contracts, they waived their right to resolve employment disputes in court. Their contracts provided that such disputes must be submitted to arbitration. However, their contracts were silent in regards to class wide arbitration. The two men brought an action on behalf of themselves and other putative class members who were denied overtime pay.

Shortly after filing the claim, a United States Dihttps://overtimestrict Court judge granted the defendant’s motion to compel arbitration of the employees’ individual claims. However, the district court determined that the arbitral forum had jurisdiction to decide whether class wide arbitration was permissible.  The arbitrator found that such claims could proceed on a class basis in arbitration – and when the defendant sought to overturn this ruling in district court, the trial court sided with the plaintiffs.  Subsequently, the defendant appealed this ruling and the 3rd Circuit reversed and remanded, finding that the decision lies with the courts. The United States Supreme Court then declined to hear the case on appeal. After the case was remanded, the district court granted Robert Half’s motion to dismiss, finding that parties cannot be compelled to submit to class wide arbitration unless there is a contractual basis for concluding such.

The plaintiffs appealed this decision yet again, and the 3rd Circuit recently ruled against them, finding it had already “explicitly decided,” in a precedential opinion in this same case, that the question of arbitrability of class claims is for the court, not the arbitrator, to decide.

Philadelphia Wage Dispute Lawyers at Sidkoff, Pincus & Green Represent Clients in All Types of Wage Dispute Cases

At Sidkoff, Pincus & Green, we routinely handle FLSA claims involving unpaid overtime. Our respected Philadelphia wage dispute lawyers are prepared to answer whatever questions you may have. To schedule a confidential consultation, call us today at 215-574-0600 or contact us online.

 

 

 

Philadelphia Consumer Protection Lawyers Discuss the Unfair Trade Practices Consumer Protection Law

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Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. (“UTPCPL”) is Pennsylvania’s consumer protection law. It seeks to prevent “[un]fair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce….” Id. § 201–3. Its aim is to protect the public from unfair or deceptive business practices.

The UTPCPL provides a private right of action for anyone who “suffers any ascertainable loss of money or property” because of an unlawful method, act or practice. See id. § 201–9.2(a). Upon a finding of liability, the court has the discretion to award “up to three times the actual damages sustained” and provide any additional relief the court deems proper. Id.  There are 20 enumerated practices which constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices.” Id. § 201–2(4)(i)–(xx). The UTPCPL also contains a catchall provision which refers to “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion of or misunderstanding.” Id. § 201–2(4)(xxi).

In order to establish a private right of action under the UTPCPL, a plaintiff must demonstrate that he/she detrimentally relied upon the deceptive practice of the defendant and that the plaintiff suffered harm as a result of this reliance. Toy v. Metro. Life Ins. Co., 863 A.2d 1, 9 (Pa. Super. 2004).  It is the plaintiff’s burden to demonstrate the level of reliance that normally accompanies a common law fraud claim.  This means a plaintiff must show not just reliance on the misrepresentation, but also that the reliance was justifiable.  Id. at 11.

Philadelphia Consumer Protection Lawyers at Sidkoff, Pincus & Green Represent Consumers in Claims for Fraud and Unfair Trade Practices

If you have been defrauded or subject to an unfair or deceptive business practice, you may have a valid claim under the UTPCPL, among other potential causes of action. Philadelphia consumer fraud lawyers at Sidkoff, Pincus & Green will seek maximum compensation for your damages. To learn more about how we may be able to help you, call us at 215-574-0600 or contact us online today.

 

 

 

Philadelphia Business Lawyers: Written Contracts

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Written Contracts May be Modified by Subsequent Oral Agreement

It is the well-settled law of Pennsylvania that a written contract may be modified by a subsequent oral agreement by either words or conduct; and an oral modification of a written contract may be implied from a course of conduct, including acquiesce in the modification through a course of conduct consistent with acceptance.

In Muchow v. Schaffner, 119 A.2d 568 (Pa. Super. Ct. 1956), Plaintiff and Defendant entered into a written contract in which Plaintiff was to construct a building for Defendant that met certain specifications. After the agreement was executed, Plaintiff realized he could not build the building as specified in the agreement because the ground would not support it. Plaintiff called Defendant and a conversation took place in which Defendant agreed orally to the new specifications that contradicted what was written in the written contract. It was proven at trial that Defendant knew the extra work would not have to be done but for the oral agreement. When the building was finished it was materially different from the original agreement and Defendant refused to pay Plaintiff, and relied on the parol evidence rule. The Court sided with the Plaintiff and found the parol evidence rule did not bar the evidence of the oral agreement.

Furthermore, a written contract may be modified by a new contract implied from conduct or an express oral agreement, even where there is a provision expressly prohibiting non-written modifications, and a party’s conduct in accepting an oral or implied modification of a written contract can result in a waiver of language requiring all modifications to be written. First Nat’l Bank of Pa. v. Lincoln Nat’l Life Ins. Co., 824 F.2d 277, 280 (3d Cir. 1987).

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

Philadelphia Trademark Lawyers: Disparaging Trademarks

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Recently, an all Asian-American band called The Slants made headlines because the United States Patent and Trademark Office “USPTO” denied their application for a trademark on grounds that their name was a racially disparaging term. Trademark registration is considered “government speech,” and thus is regulated.

Although American citizens have freedom of speech, and the right to exercise that privilege, the government cannot sanction disparaging language. In other words, although a band can call themselves The Slants, and more generally, anyone can use any “trademark” or name they like regardless of how disparaging it may be, the government cannot register an offensive trademark. The so-called disparagement provision of Section 2(a) of the Lanham Act prohibits registration of marks that “may disparage” any person or group.

The Slants are a Portland, Oregon based rock band founded by musician Simon Shiao Tam. Tam states that, as an Asian-American, he named the band in an effort to reclaim power from a racial slur that had been used against him his entire life. According to Tam, the band’s name also refers to “guitar slants” and the band members’ unique slant on life.

Enforcement of the Lanham Act is Unconstitutional

After the USPTO denied the application pursuant to the disparagement provision, Tam filed suit. The matter is currently pending before the United States Supreme Court. Before the case made its way to the Supreme Court, a Federal Circuit Court of Appeals determined that the disparagement provision of the Lanham Act is unconstitutional. The Circuit judges noted that regardless of their personal feelings about the trademark at issue, or any other disparaging marks, the First Amendment forbids government regulators to deny registration on grounds that it finds the speech likely to offend others. The Court went so far as to note that Tam’s role as a musician is to weigh in on cultural and political discussions about race and society that are “within the heartland” of speech protected by the First Amendment. The issue currently before the United States Supreme Court on appeal is whether the disparagement provision is facially invalid under the Free Speech Clause of the First Amendment.

A number of so-called interested parties have filed amicus briefs in this case. One brief, submitted to the Court by the Cato Institute, takes issue with the fact that the government should not get to decide what is or is not a racial slur.

One related case that may be instructive involves the registration of the NFL team named the Redskins. A District Court upheld the cancelation of the Redskins trademark on grounds that it may disparage Native Americans. The Court noted that because trademark registration is “government speech,” it is exempt from First Amendment scrutiny.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green, P.C. Have Extensive Experience Litigating Trademarks

If you have questions about registering a trademark or protecting an existing mark, the Philadelphia intellectual property lawyers at Sidkoff, Pincus & Green can help. We have decades of combined experience in intellectual property law. With offices conveniently located in Philadelphia, we serve clients throughout Pennsylvania and South Jersey. Schedule a consultation today by calling us at 215-574-0600 or by completing our online contact form.

Philadelphia Business Lawyers: Arbitration Clauses Not Always Enforceable or Advisable

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Arbitration is an alternative to litigating in court and it may lead to a cheaper and more expedient result. It also may be favorable to both sides in certain situations, particularly when it concerns two equal parties with access to equivalent resources saving time and money for all concerned. However, arbitration is often a disadvantage when the playing field is not level,  and for that reason, it is a common tool used by big business against consumers and employees.

Recently the American multinational technology conglomerate, Cisco, tried to force a lawsuit by one of its employees into arbitration and lost in San Francisco Superior Court. An employee filed an age discrimination claim against Cisco. The company responded by stating that the employee had given up the right to sue when she signed her employment contract because it included a clause that said any disputes must be settled by binding arbitration. However, the clause about arbitration was buried within a form that was mainly about intellectual property claims – something every employee must sign in order to be able to work at Cisco.

Judge Harold Kahn ruled that in effect, Cisco had surprised the employee with the arbitration requirement by putting the language in one paragraph on page five of a seven page, single spaced document about proprietary information. Moreover, the language stated that the employee was also obligated to pay half the costs of any employment disputes that went to arbitration, which is against California regulations.

Arbitration is a Common Practice for Companies

Cisco is not the only company trying to use arbitration to its advantage. Wells Fargo is still recovering from the scandal that broke when the practice of opening multiple accounts in a customer’s name without their knowledge became public. Victims seeking justice were forced into binding arbitration by the bank. The original accounts had a clause about arbitration which the bank said also applied to any subsequent disputes. Due to the fact that most results of arbitration cases are not a matter of public record, the scale of the Wells Fargo scandal was kept under wraps for longer than it would have been in a court of law.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Defend Those Being Forced Into Arbitration

Consumers and employees need to be aware of arbitration clauses because they are extremely common. At Sidkoff, Pincus & Green, we have experience representing consumers and individuals in arbitration matters, and in court.

If you have a matter that is in arbitration, or you are concerned about signing a contract with an arbitration clause, please feel free to contact the Philadelphia business lawyers at Sidkoff, Pincus & Green, P.C.. Call us at 215-574-0600 to schedule an appointment or contact us online. We serve clients throughout Pennsylvania and New Jersey.