Category: Business Law

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 Employment Lawyers Discuss the Pennsylvania Commissioned Sales Representative Act

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The Pennsylvania Commissioned Sales Representative Act, 43 Pa. Stat. § 1471 et seq. (“PCSRA”) provides statutory remedies for certain sales representatives when they are not paid timely commissions. Under the PCSRA, a “principal shall pay a sales representative all commissions due at the time of termination within 14 days after termination” and “all commissions that become due after termination within 14 days of the date such commissions become due.” 43 Pa. Stat. §§ 1473–74. If a principal “willfully” violates these provisions, then the sales representative may bring a civil action to collect all unpaid commissions plus exemplary damages and attorneys’ fees. Id. § 1475. The Act thus governs the payment of commissions owed by a “principal” to a “sales representative,” and a defendant can only be liable if the plaintiff is a “sales representative” as that term is used in the Act.

A key factor in determining whether you have a claim under the PCSRA is to understand how the law defines the terms “sales representative” and “principal”.

The PCSRA defines the term “sales representative” as follows:

“Sales representative.” A person who contracts with a principal to solicit wholesale orders from retailers rather than consumers and who is compensated, in whole or in part, by commission. The term does not include one who places orders or purchases for his own account for resale or one who is an employee of a principal.

Id. § 1471.

Thus, a “sales representative” is someone who solicits wholesale orders from “retailers” rather than “consumers.”

A “principal” is defined by the PCSRA as any person who does all of the following:

(1) Engages in the business of manufacturing, producing, importing or distributing a product for sale to customers who purchase such products for resale.

(2) Utilizes sales representatives to solicit orders for such product.

(3) Compensates sales representatives, in whole or in part, by commission.

Id.

Finally, a sales representative should be cautioned against bringing a meritless claim against a principal under the PCSRA.  If judgment is entered for the principal and the court determines that the action was brought frivolously, then the principal will be awarded attorneys’ fees and costs. Id. § 1475.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Sales Commissioned Representatives in Claims to Recover Unpaid Commissions

If you are owed unpaid commissions, you may have a valid claim under the Pennsylvania Commissioned Sales Representative Act, among other potential causes of action. Philadelphia employment 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: Foreign Arbitration

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In a recent decision out of the Second Circuit, a U.S. Court of Appeals held that American courts can enforce an international arbitral award notwithstanding the fact that it was annulled by a court in a foreign country.

In Commisa v.Pemex, a Mexican subsidiary of a Texas corporation (Commisa) sued a state-owned Mexican oil company (Pemex), regarding several contracts to build infrastructure in the Gulf of Mexico, after a Mexican arbitral tribunal awarded the Texas company over $350 million. A Mexican court later set aside the award. Commisa then sought enforcement in the United States, and a New York district court judge held that the award should be enforced. The Second Circuit affirmed his ruling.

The Second Circuit noted that under the Panama Convention, American courts must enforce the award unless one of seven defenses enumerated in the Panama Convention is established. Although one of those seven defenses (a set aside) was satisfied, the judge ruled that he was constrained by the prudential concern of international comity—and that the Mexican decision violated international policy.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. frequently represent Businesses in Arbitration

If your business is involved in a commercial dispute that is subject to arbitration, the Philadelphia business lawyers at Sidkoff, Pincus & Green may be able to help you. To learn more or schedule a consultation, 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 Business Lawyers: Communications Decency Act

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State Law Claims Such as Defamation and Negligence Barred under the Communications Decency Act

Under the Communications Decency Act 47 U.S.C.A. § 230 (“CDA”), a party is immune to state law claims relating to information published on the Internet such as defamation, misappropriation of likeness, breach of contract, and negligence. § 230 of the CDA states that no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

For example, these provisions bar state law claims against interactive computer services for publishing content obtained from another information content provider. Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 293 (D.N.H. 2008). The intent of this provision is to preclude courts from entertaining claims that would place a computer service provider in a publisher’s role. Green v. Am. Online (AOL), 318 F.3d 465 (3d Cir. 2003). The Eastern District of Pennsylvania ruled that the CDA provides immunity to similar claims like misappropriation of the right of publicity, defamation, and negligence. Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d, 242 F. App’x 833 (3d Cir. 2007) citing (Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir.) (§ 230 affords immunity from suit on claims of invasion of privacy, misappropriation of the right of publicity, defamation, and negligence)).

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

Philadelphia Trademark Lawyers: The Digital Millennium Copyright Act

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Protecting Internet Service Providers from Claims of Copyright Infringement

The Digital Millennium Copyright Act 17 U.S.C. §§ 512, (“DMCA”), is a law that heightens the penalties for copyright infringement on the Internet. The DMCA provides a safe-harbor provision for internet service providers from monetary liability under the Act as long as they comply with the conditions set forth in § 512. An internet service provider is defined as

“an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received and/or a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).”

Companies like Google and Amazon are considered internet service providers because they merely provide the online services that allow third party users to sell goods. Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) aff’d, 242 F. App’x 833 (3d Cir. 2007) and Hendrickson v. Amazon.Com, Inc., 298 F. Supp. 2d 914, 914 (C.D. Cal. 2003).

Internet service providers are protected under the Act’s safe-harbor provision as long as the provider: does not have actual knowledge of infringing content on its servers, does not receive a financial benefit directly attributable to the infringing activity if the provider has the ability to control such activity, and acts quickly to remove or disable access to infringing material after receiving notice that the material is infringing.

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

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.

 

 

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.