Category: Business Law

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.

 

 

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: Pennsylvania Revenge Porn Law

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In 2014, Pennsylvania joined 25 other states in passing what is commonly known as a “revenge porn” law. 18 Pa.C.S.A. § 3131. The new law prohibits unlawful dissemination of intimate images which depict a current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct with the intent to harass, annoy or alarm that individual.

The law makes it a crime for anyone to post explicit photos of a former partner online or send them to others without that partner’s consent. Violators could be sentenced to a year in prison and fined $5,000 if the victim is an adult, or five years in prison with a $10,000 penalty if the victim is a minor.

Difference between Invasion of Privacy Law and Revenge Porn Law

Pennsylvania already has an Invasion of Privacy Law which makes it a crime for someone to take nude photos of another individual without that individual’s consent. 18 Pa.C.S.A. § 7507.1. First time offenders of this law could be sentenced to a year in jail and a $2,500 fine.

The difference between the Invasion of Privacy Law already on the books and Pennsylvania’s new Revenge Porn Law is that in the case of revenge porn, a partner had given consent for the photographs to be taken of him or her. However, the Revenge Porn law is designed to curb the release of intimate photographs that, despite being taken with a partner’s consent, were ultimately disseminated to others, such as through email, or posted on the Internet, without that partner’s consent.

Opportunities for Civil Recourse

Victims of revenge porn searching for compensation may be able to find it through the civil legal system, but may face some challenges in doing so. If a victim does not know who released the photo, or a website is protecting the identity of an uploader, it will be difficult to name a defendant in a lawsuit. Victims of revenge porn will also have trouble pursing a claim against websites upon where the photo is published, because under federal law, internet publishers or websites are not liable for content posted by third-party users; therefore, a website cannot be held liable for a photo or video posted by a user. However, a website that urges users to submit the type of content the victim’s claim involves can sometimes deemed as engaging in the content as a co-developer or editor, and therefore open them up to potential liability.

While there are challenges, there are ways for a victim to obtain redress. One possible avenue is a claim for copyright infringement. The Digital Millennium Copyright Act (DMCA) permits victims of revenge porn to file a report for copyright infringement when they see that their photo is being distributed online, and leads to the issuing of a “takedown notice” to an internet service provider or hosting company. This notice expedites the removal of a photo from a website. A lawsuit for copyright infringement can also provide the opportunity to collect damages. However, there is a limitation with this avenue of recourse in that the copyright belongs to the person who took the photo; therefore, a victim who had a photo taken of them is not the copyright holder and will not be able to pursue this claim unless he or she can obtain copyright ownership.

Other causes of civil action include intentional infliction of emotional distress, private disclosure of public facts, intrusion upon seclusion and identity theft.

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

Philadelphia Business Lawyers: Prompt Payment Law Decision

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Prompt Payment Law Does Not Always Mandate Bad Faith Awards

In an important decision regarding public contracts, The Supreme Court of Pennsylvania reversed a Commonwealth decision automatically awarding attorney fees and a one percent penalty to contractors whose payments were breached in bad faith. The city of Allentown, Pennsylvania (Allentown) contracted A. Scott Enterprises (Scott) to complete a paving project.

After contaminated soil was discovered at the job site, the project was delayed. Allentown and Scott could not come to an agreement over the additional fees incurred because of the project’s delay and the contaminated soil. Scott then filed suit to recover losses on the delayed project. They were awarded $927,299. The jury found that the city breached its contract and acted in bad faith by refusing to pay Scott for the delays and damaged contract.

Though Scott received damages, they were not awarded attorney fees, the monthly one percent penalty, or interest. Scott then took the case to the Commonwealth Court which held that when the jury found that Allentown acted in bad faith, fees and penalties were mandated by law.

Allentown took the case to the Pennsylvania Supreme Court, arguing that the use of “may” in the Prompt Payment Law indicates that the award of attorney fees and penalties is subject to review on a case by case basis. That said, in most cases, public owners found to act in bad faith are required to pay public contractor’s attorney fees and penalties.

Does This Ruling Permit Exceptions?

Allentown has to take the case to trial court, where they may still be required to pay Scott penalties. The Supreme Court decision simply opened the door for exceptions to the rule.

Only in rare cases, very good reasons will exempt owners from paying out those awards. The Procurement Code will most likely prevail in most cases, requiring owners to pay their contractors on time and as agreed upon.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Tackle Tough Business Litigation

Philadelphia business lawyers at Sidkoff, Pincus & Green represent clients in a variety of business disputes. We handle cases involving OSHA investigations, wrongful termination, discrimination, overtime pay disputes, trademark infringement, business torts, and FTC cases. Call our Center City Philadelphia offices at 215-574-0600 or complete our online contact form to discuss your case.

Philadelphia Employment Lawyers: SEPTA Claim

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Court Rejects Appeal by Former SEPTA Worker on Claims for Hostile Work Environment and Discrimination

On August 8, 2016, the U.S. Court of Appeals for the Third Circuit denied the appeal of former SEPTA employee Marie Selvato, who sued SEPTA after she was seen at a taping of “Live with Kelly & Michael” while on sick leave. Selvato brought an action against former employee SEPTA for hostile work environment and discrimination. Selvato claimed she was sexually harassed between 2004 until she was terminated. Selvato’s claims were dismissed last year when U.S. District Judge Wendy Beetlestone of the Eastern District of Pennsylvania granted summary judgement to SEPTA, finding that she failed to show a connection between her termination and sexual harassment allegations.

Pennsylvania law requires claimants to first file a hostile work environment claim with the EEOC which requires that claims must be filed within 300 days of unlawful employment action. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013). The trial court ruled that most of Selvato’s claims fell outside of this 300 day window. Selvato’s claims stemmed from instances of alleged sexual harassment between 2004 and 2012. However, a majority of the instances occurred between 2004 and 2009. Selvato claimed her supervisor James Stevens made two remarks within the 300 day window that rise to the level of sexual harassment. Stevens told her that he was “stalking her Facebook pictures” because he had gone to school with Selvato’s sister. He also told Selvato that he would like to “pet” a flower on her blouse because it looked soft. The Eastern District granted summary judgment against Selvato, which she subsequently appealed.

To make a hostile work environment claim, Selvato had the prima facie burden of proffering evidence to show the following elements: “1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability.” Mandel, 706 F.3d at 165. The Court of Appeals agreed with the lower courts conclusion that these comments, though offensive, did not rise to the level of physical threat necessary to establish a prima facie hostile work environment claim. The Court of Appeals affirmed the dismissal of the discrimination claim as well citing lack of evidence and pure speculation by Selvato. 

Selvato v. SEPTA, No. 15-3686, 2016 U.S. App. LEXIS 14524 (3d Cir. Aug. 8, 2016)

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