Category: Business Law & Commercial Litigation

Philadelphia Whistleblower Lawyers: The False Claims Act 

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The False Claims Act is a federal law that holds people and companies liable for defrauding government programs. Pursuant to this Act, private citizens can sue those that commit fraud against the government. These cases are referred to as “qui tam” cases, because they are brought under the qui tam provision of the False Claims Act. The Act provides for treble (triple) damages, and provides whistleblowers with awards of 15 to 30 percent of the money recovered. The Department of Justice (DOJ) recently announced that 2016 was the third highest recovery year in the history of the False Claims Act.

The DOJ issued a press release stating that they obtained close to $5 billion in settlements and judgments for cases where persons or companies defrauded the federal government in 2016. More than 50 percent of these recoveries were brought under the qui tam provisions of the False Claims Act. The whistleblowers recovered a staggering $519 million in 2016 alone.

Most of the money recovered in 2016 came from the health care industry. The next common sector where recoveries were made was the financial sector, largely relating to housing and mortgage fraud. Procurement fraud, fraud associated with federal education funds, and customs fraud followed close behind.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Counsel Clients About Whistleblower Protections

Whistleblowers may be entitled to confidentiality and protection against employer retaliation. The highly-experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green can advise you of your rights, and help you determine whether you are eligible for compensation under the qui tam provisions of the False Claims Act or under other state and federal laws. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Business Lawyers: Uber Arbitration Appeal

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When patrons of Uber’s ridesharing service open the Uber app, they are taken to a registration screen that advises them that by using the app, they are consenting to Uber’s terms of service. These terms can be accessed by a hyperlink. One of these terms binds users to arbitration. After some of Uber’s customers filed an antitrust lawsuit against the company, Uber tried to hold them to the arbitration clause. But Federal District Court Judge Jed Rakoff looked at Uber’s registration screen and determined that it did not do a good enough job of ensuring that customers knew what they were signing. Specifically, Rakoff found that Uber did not give its customers fair warning that by using their service, they agree to waive their right to sue Uber in court.

This recent Uber arbitration appeal is part of a trend in litigation, whereby consumers are questioning the validity of their “consent” to hidden terms and conditions on their mobile phone screens. Generally, for consent to be valid, consumers must actively click on a button that says, “I agree,” or something similar. This is referred to as a clickwrap contract. Courts in some circuits are reluctant to honor any other type of agreements.

The Age of the Internet Waiver

In his ruling, Judge Rakoff noted that the right to a jury trial has been one of the most precious and fundamental rights afforded to citizens. Yet, in the world of the Internet, consumers are all deemed to have regularly waived this right on a daily basis and given up our access to courts altogether. He emphasized that many people are unaware of these conditions, and even if they are, they have no real ability to negotiate.

Uber appealed Judge Rakoff’s ruling to the 2nd U.S. Circuit Court of Appeals. Judge Rakoff agreed to stay the underlying antitrust class action until the 2nd Circuit weighs in on the validity of consumer consent to Uber’s arbitration clause. If the 2nd Circuit Court reverses Judge Rakoff’s decision, the antitrust class action will proceed to arbitration.

There has been some criticism to Judge Rakoff’s opinion. The Internet Association warned that his opinion unsettled existing case law. Members of the Internet Association include some of the largest online retailers in the United States. They also claim that consumers have become accustomed to this type of mobile contracting (with hyperlinked terms of service), and know what to expect.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Counsel Clients on All Aspects of Arbitration

Philadelphia business lawyers at Sidkoff, Pincus & Green have experience litigating and counseling clients in all facets of arbitration. From defending arbitration clauses, to challenging arbitration clauses in class action lawsuits on behalf of consumers, we have extensive experience with all aspects of business litigation. We also routinely litigate arbitrations and have a track record of achieving our clients’ goals. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Whistleblower Lawyers: Enforcement Action Leads to $3.5M Award

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A whistleblower was recently awarded approximately $3.5 million by the Securities and Exchange Commission (SEC) for shining a light on wrongdoing that led to a successful enforcement action. According to the SEC – which did not name the whistleblower nor identify the wrongdoer – tips from whistleblowers have led to the recovery of $874 million in financial remedies since the SEC whistleblower program was created in 2012.

Many Americans remain unaware of the financial incentives available to conscientious employees who report their employer’s fraudulent behavior. Whistleblower protection extends to any worker who alerts government regulators to a variety of wrongdoing, including violations of the False Claims Act, the Clean Air Act, the Dodd-Frank Act, the Occupational Safety and Health Act, and many other federal statutes. A whistleblower is granted complete confidentiality by the government when the information disclosed leads to a successful enforcement action. Moreover, if monetary sanctions issued against a wrongdoer exceed $1 million, a whistleblower is entitled to an award ranging between 10 percent and 30 percent of the sanction.

Proceeding as a Whistleblower in Pennsylvania

Whistleblowers must proceed with caution and limit discussions of their concerns with coworkers. Instead, if an employee has a good faith belief that their employer has defrauded the government or consumers, they should first seek counsel from a lawyer who will ensure that whistleblower protections are in place before regulators are contacted. An employer who suspects that a member of their workforce is in talks with the SEC or other government officials may attempt to short-circuit an investigation by taking retaliatory action against a whistleblower. Fortunately, pursuant to the federal Whistleblower Protection Program, when a whistleblower’s actions lead to an enforcement action, the whistleblower is entitled to reinstatement to their previous position in addition to the aforementioned monetary award.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green, P.C. Offer Reliable, Trustworthy Representation

Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. understand the concerns of conscientious employees in their effort to shed light on wrongdoing by an employer. If you or a loved one has information relating to a potential whistleblower claim, call 215-574-0600 or contact us online to learn more about how we can help. At our Philadelphia offices, we proudly serve whistleblower clients throughout Southeastern Pennsylvania as well as South Jersey.

Philadelphia Business Lawyers: Pharmaceutical Drug and “Product Hopping”

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The Third Circuit recently ruled that certain changes to a drug made by a pharmaceutical company did not constitute “product hopping” and therefore did not violate federal antitrust laws. Product hopping occurs when a pharmaceutical company makes insignificant and non-substantive changes to a drug with the intent to thwart other companies from creating generics of the drugs. This creates a type of monopoly in the market that the federal  antitrust law, the Sherman Act, is designed to prevent.

A previous case in New York’s Second Circuit courts was decided in opposition to this case, wherein the court determined on summary judgment that antitrust laws were violated. The Third Circuit said that the previous case in New York was different since discovery was conducted and it could look more closely at whether the thresholds under the Sherman Act were in fact met.

The Third Circuit case, Mylan v. Warner Chilcott, analyzes whether Warner Chilcott violated the Sherman act by possessing monopoly power in the market and whether it acquired this monopoly power “by means other than superior product, business acumen, or historic accident” which is commonly known as “anticompetitive conduct.”

Determining if a Drug is Generic

It is important to note that in order for a drug to be considered by the FDA as a generic, it must be bioequivalent to the brand name drug and it must match the dosage, strength, and form. In this case, Mylan alleged that Warner Chilcott changed the form from capsule to tablet and also the dosage of the drug on a frequent basis in order to avoid other companies from developing generics.

Here, the Third Circuit found it important that Warner Chilcott’s changes to the drug did not bar or restrict Mylan from occupying a place in the market. Additionally, the court broadened the definition of the marketplace from Mylan’s arguments and found that Warner Chilcott’s share of the market never exceeded 18 percent and therefore did not constitute a monopoly. Mylan defined the market in this instance to include only the drug Doryx, which is a tetracycline drug, and more specifically a delayed release doxycycline hyclate used to treat acne. The Court determined that the market encompassed all tetraclycline drugs used to treat acne, and not just Doryx. Additionally, the Court pointed out that Mylan earned sizeable profits from a generic Doryx drug in tablet form when Doryx was sold as a tablet.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Work to Uphold Antitrust Laws

If your company has an antitrust legal issue, contact the Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online to discuss your options. Our firm has extensive experience representing clients in complex business law. We represent clients throughout the greater Philadelphia area, including New Jersey.

 

Philadelphia Employment Lawyers: Non-Solicitation Award

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Superior Court of Pennsylvania Upholds Non-Solicitation Agreement, Awards $6.9 Million in Damages 

On October 7, 2016 the Superior Court of Pennsylvania handed down a ruling upholding the legality of non-solicitation agreements and awarded millions of dollars in damages. In B.G. Balmer & Co. Inc. v. Frank Crystal & Company Inc., et al, 2016 PA Super 202 (Pa. Super. 2016). Plaintiff Balmer sued to former employees as well as their new employer, Frank Crystal. The former employees began planning to work for Frank Crystal six months prior to leaving Balmer. Although they had signed non-solicitation agreements with Balmer, the defendant employees worked with a recruiter during this time and gave up valuable information about Balmer, such as trade secrets and client lists. During their first year at Frank Crystal, the defendant employees generated revenue solely on former Balmer clients, and managed to bring Balmer’s largest client over to Frank Crystal. As a result of the defendant employees’ actions, Balmer lost its client base and had to be sold.

Balmer sued the former employees and Frank Crystal, alleging violation of their non-solicitation agreements, breach of fiduciary duty, tortious interference with contractual relations, unfair competition and other claims. The trial court ruled in Balmer’s favor for a majority of the claims, assessing $2.4 million in compensatory damages and $4.5 million in punitive damages. Defendants appealed the award of punitive damages, but the Pennsylvania Superior Court affirmed the lower court’s ruling and found their conduct egregious enough to warrant a large award.

For more information, call the Philadelphia employment lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Enforceability of Fee Agreement Via Email

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Recently, a Pennsylvania Superior Court ruled in a business litigation case where a contingent fee agreement, which was set forth in an email between an attorney and client, was enforceable against the client even though the client did not sign it.

In that case, the client owed approximately $40,000 to his attorney under that contingent fee agreement. The Court found that client should be responsible for about $39,000 of it. The main takeaway in that case has major impacts on how attorneys or other businesspeople can collect their fees. The fee agreement between attorney and client was enforceable since it appeared in an email between the parties and no signature by the parties was necessary. In that case, it may also be important to note that the email that contained the agreement requested a $32,000 upfront fee which the client promptly paid.

Emails Constitute as “In Writing”

The client attempted to argue that the fee agreement was not enforceable since the Pennsylvania Rules of Professional Conduct (RPCs) for attorneys requires that contingent fee agreements must be in writing. The court found that the client’s argument failed for two reasons: first because the Rules of Professional Conduct for attorneys do not have the same weight as substantive law in civil proceedings since those rules are intended to be relied upon in attorney disciplinary proceedings; secondly, the court said that the contingent fee agreement was in fact in writing, as required by the RPCs, since it was in an email sent from the attorney to the client.

Although attorneys and other businesses have traditionally favored signed paper contracts for these types of fee agreements, technology appears to be carrying more weight these days. Even though it was not mentioned in the Court’s opinion, the Court may have also found it important that there was no question that the client actually read and received the emailed fee arrangement since he paid the $32,000 in response to that email. Additionally, this client was likely quite knowledgeable in business matters since his attorney was defending him regarding a $1.5 million loan he received from his employer, a major bank.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Counsel on Business Litigation Issues

Call the Philadelphia business lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600, or contact us online, to see how we can protect your rights in when entering into or disputing business agreements.

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 Business Litigation Lawyers: NJ Superior Court Reverses $18M Verdict in Accutane Litigation

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In July, the New Jersey Superior Court, Appellate Division overturned an $18M jury verdict against Defendant Hoffmann-La Roche Inc., the manufacturer of Accutane, a popular drug for severe cystic acne. Rossitto v. Hoffman-LaRoche Inc., 2016 N.J. Super. Unpub. 2016 WL 3943335 (N.J. App. Div. Jul. 22, 2016). Plaintiffs were Accutane users who claimed that they developed ulcerative colitis, a chronic disease of the large intestine after using the product for years and that the manufacturer failed to adequately warn about the risk of developing this condition.

 

The Appellate Court overturned the verdict and ordered a new trial after the trial court allowed Plaintiffs’ counsel to admit into evidence a change to the drug’s warning label in 2000, after Plaintiffs had stopped taking the drug, even after that evidence was initially barred earlier in the trial. The court found this mistake to be prejudicial to Defendant, because it fostered the belief that the labels previous to the 2000 label did not meet the proper standards. Furthermore, the trial court erred in restricting the number of defense expert witnesses to testify on general causation.

 

Roche has continued to win on appeal in Accutane cases. In 2014 and 2015, the Superior Court reversed a $25 million verdict and a $2.1 million verdict against the company, respectively, in similar cases. In 2010, the same court overturned a $10.5 million verdict against the company, sending the case back for retrial based on a separate evidentiary issue. Roche discontinued the sale of Accutane in 2009.  

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

Philadelphia Business Lawyers: Copyright Infringement Lawsuit

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The Supreme Court recently weighed in on certain copyright infringement issues that have long been unsettled in American law. First, the Court ruled that the resale of foreign-manufactured books in the United States does not violate the “first-sale” provision. In a second related lawsuit, the Court found that the award of attorneys’ fees to the reseller was appropriate. The case, Kirtsaeng v. John Wiley & Sons, Inc., has important implications for intellectual property litigants, because it clearly sets forth the factors courts must consider in determining whether to award attorneys’ fees to a prevailing party.

The case arose when Kirtsaeng instructed family and friends living in Thailand to purchase copies of John Wiley & Sons’ books and ship them back to him in the United States. The books were priced substantially less in Thailand than in the U.S., so Kirtsaeng resold them for a profit. Wiley then sued him for copyright infringement.

The lawsuit alleged that Kirtsaeng infringed Wiley’s right to exclusive distribution under Section 106(3) of the Copyright Act. Kirtsaeng claimed that his purchases and resales were protected under the “first-sale” provision. Wiley’s rebuttal that the provision does not apply to books manufactured abroad was not accepted by the Court, who ruled in favor of Kirtsaeng.

In a second round of litigation arising out of the same set of facts, Kirtsaeng argued that he was entitled to attorneys’ fees under the Copyright Act’s discretionary fee shifting provision, which allows a court to award reasonable attorneys’ fees to a prevailing party. Author of the opinion, Justice Kagan, stated that payment of attorneys’ fees is important to uphold the intent behind the copyright act, which aims to enrich the general public through access to creative works.

Kagan stated that the reasonableness of the losing party’s position should be taken into account in awarding attorneys’ fees, along with other so-called “Fogerty factors,” including:

  • The frivolousness of the losing party’s position.
  • The losing party’s motivation for bringing the suit.
  • Objective unreasonableness of the losing party’s claim.
  • The need in particular circumstances to advance considerations of compensation and deference.

This decision is important for any intellectual property litigant for many reasons, one being that it can help inform a decision whether to settle and for how much. For example, if a litigant’s claim is weak, knowing that going to trial could result in having to pay attorneys’ fees should serve to encourage settlement.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Have Extensive Experience in All Aspects of Business Litigation

Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. have extensive experience in all types of business tort litigation, including complex copyright infringement matters. With offices conveniently located in Philadelphia, we represent businesses throughout Pennsylvania and South Jersey. To schedule a consultation, call us at 215-574-0600 or contact us online today.