Category: Business Law

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: Third Circuit Revives Defamation Suit Involving Philadelphia Firefighter

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The U.S. Court of Appeals for the Third Circuit decided on July 26, 2016 to revive a firefighter’s defamation and false light claim against the New York Daily News after rehearing the claim on June 21. The claim involved a Philadelphia firefighter, Francis Cheney, whose photograph appeared with an article in January about a sex scandal involving Philadelphia firefighters and a paramedic.

The Third Circuit originally affirmed a dismissal of the suit because Cheney could not show that the allegedly defamatory material could reasonably be understood as referring to him, as the article never mentions his name and the photograph was just a stock photograph. However, in reviving the claim, the Court stated that a reasonable reader could, in fact, conclude that the text could be “of and concerning” him. One of the Court’s reasons was that the picture was placed directly next to the text, and it was the only picture of a firefighter that ran along with the story. Furthermore, many firefighters were implicated in the story, but Cheney’s name is the only one that appeared in print, despite the fact that he was not involved in the scandal. These circumstances together could lead a reasonable reader to believe Cheney was involved in the scandal.

The attorneys for Cheney will now continue to litigate the case.

The Philadelphia business lawyers at Sidkoff, Pincus and Green represent clients in defamation and disparagement claims.  For more information call 215-574-0600 or contact us online.

Philadelphia Business Lawyers: How Should FMLA Settlement Amounts Be Reported to the IRS?

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In Gunter v. Cambridge-Lee Industries, LLC, Vincent Gunter alleged that his rights under the FMLA were violated by his employer.  CV 14-2925, 2016 WL 3762992, at *1 (E.D. Pa. July 14, 2016). The two parties ultimately were able to reach a settlement. However, the parties were unable to agree on how the settlement proceeds should be reported to the Internal Revenue Service.

Gunter’s position was that the proceeds of the settlement were not wages and were not subject to withholding or reporting to the IRS on Form W-2 but instead should be reported to the IRS on Form 1099. The Defendant employer contended that the proceeds of the settlement did constitute wages that must be reported to the IRS on form W-2 subject to the withholding of taxes and other payroll charges. However, there was no binding Third Circuit precedent with regard to this particular issue.

In deciding this issue, the Court found two cases be persuasive. In Churchill v. Star Enters, the Court found that the relevant regulations and the FMLA statute specifically required the performance of services in order for the payment to constitute wages for withholding purposes. 3 F. Supp.2d 622 (E.D. Pa. 1998). As a result, the Court held that no withholding of the judgment was mandated under either federal or state law. In Carr v. Fresenius Med. Care, the Court found that recovery under the FMLA “does not constitute back pay but an amount of damages equal to the sum of various components, including, but not limited to, lost wages.”  2006 U.S. Dist LEXIS 29627, at *7-8, 2006 WL 1339970. Following this reasoning of these two cases, the Grunter Court held that an award, and in this case a settlement, does not constitute wages for Plaintiff that are subject to the withholding of taxes.

Philadelphia Employment Lawyers: Employers have Privilege when Providing References about Former Employee

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On June 28, 2016, the Third Circuit ruled in favor of employers who sought a conditional privilege when providing employee references to other employers. In Bentlejewski v. Werner Enterprises Inc., No. 15-2870, 2016 WL 3523303, at *1 (3d Cir. June 28, 2016), Defendant sent Plaintiff’s prior accident and driving report to two prospective employers. In the report, there were four “preventable” minor accidents noted, which prevented Plaintiff’s employment at the two trucking companies. Plaintiff then filed suit, alleging those driving reports contained “false and misleading” information, which prevented him from obtaining employment.
The Court recognized that employers have a conditional privilege to provide prospective employers with honest references concerning a former employee. In order to show an employer abused this privilege, a former employee must show the employer knowingly provided false information. It is not enough that an employer simply provided false information.

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.

Philadelphia Business Lawyers: NJ Court Declares Car Dealer’s Arbitration Clause Unenforceable

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The Appellate Division has recently ruled that the arbitration provisions in a New Jersey used car dealer’s sales contract were too confusing to enforce. The dealer had moved to dismiss a customer’s complaint and compel arbitration, despite claims that the dealer had violated the New Jersey Consumer Fraud Act, committed a breach of warranty, and other infractions. However, the court denied the motion on grounds that the documents included three different arbitration clauses with several “hopelessly confusing” contradictory provisions.

The court was concerned that an average consumer who signed one of these sales agreements would have no idea what essential terms they were signing. Consumers would not know how to file a demand for arbitration, within what timeframe and where to file it, or what it would cost. Another concern was conflicting, contradictory requirements. Conflicting statutes of limitations were incorporated, and the document set forth contradictory provisions as to whether the American Arbitration Association or some other forum must be used.

In another contradiction, one clause stated that consumers must provide written notice of a dispute to the dealership 30 days before filing arbitration, but another clause stated that there was no waiting period. The dealer, Federal Auto Brokers, conceded that such contradictory provisions may void an agreement to arbitrate.

In short, arbitration is an agreement between two parties to attempt to resolve a dispute outside of the court system. Parties agree on a neutral third party to serve as arbitrator, and that person acts as both judge and jury. The rules of arbitration are typically a matter of contract between the parties. Arbitration can be either binding or non-binding, depending on the provisions in the contract. The primary benefit of arbitration is that it enables parties to resolve disputes quickly and easily, whereas lawsuits in the judicial system can last for years.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Counsel Businesses and Individuals on Contracts and Frequently is involved in Contract Litigation

If you need assistance negotiating, drafting, or reviewing business contracts – or are involved in litigation related to a contract – the experienced Philadelphia business lawyers at Sidkoff, Pincus & Green can help. To schedule a consultation, call us at 215-574-0600 or contact us online today. With offices located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey.

Philadelphia Medical Malpractice Lawyers: Temple Hospital Allowed to Seek Damages from Government in Medical Malpractice Case

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In February 2012, an obstetrician at Temple University Hospital delayed a Caesarian section that was necessary because of an abnormal fetal heartbeat and, as a result, the child was born with severe brain damage. The obstetrician, Clinton Turner, was an employee of a federally funded operator of clinics in the Philadelphia are and was working under an agreement between the hospital and operator. In August 2014, the hospital agreed to pay $8 million to settle the case. A year later, the hospital then submitted a claim to the federal government under the Federal Tort Claims Act, stating that the government was liable for the $8 million settlement because Turner was technically a federal employee under the Public Health Service Act. Temple Hospital claimed the government was bound to insure the hospital based on its physician-sharing contract with the clinic as well as common law contribution and indemnification.

On June 21, 2016, U.S. District Judge Mark Kearney dismissed the physician-sharing contractual indemnification, agreeing with the government that it could not bind them because they were not party to the agreement. However, the Court upheld the common law claims, finding the hospital’s settlement had eliminated Turner’s liability, and it had “held Dr. Turner out as its employee,” creating the necessary legal relationship.

Temple University Hospital Inc v. United States, U.S. District Court, Eastern District of Pennsylvania, No. 2:16-cv-01073.

Philadelphia Medical Malpractice Lawyers at Sidkoff, Pincus & Green Handle a Variety of Medical Malpractice Cases

The Philadelphia medical malpractice lawyers at Sidkoff, Pincus & Green are experienced handling complex medical malpractice litigation. Contact us online or call 215-574-0600 today to schedule a consultation.

Philadelphia Business Lawyers: Lawsuit Alleges Defamatory Billboard

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Defamation is when an individual makes a defamatory statement about another person that damages that person’s reputation. Libel and slander are both types of defamation, with libel involving a written statement, and slander involving a verbal statement. Defamation, libel, and slander are all relevant issues in business law.

A group of prominent judges, attorneys, and businessmen in Hillsborough County, New Hampshire recently filed a civil lawsuit against mortgage broker Michael Gill, who is running for Governor of New Hampshire, and demanded that he take down an allegedly defamatory billboard that explicitly refers to the professionals as drug dealers and extortionists.

The three men filed a lawsuit against Gill for libel and defamation. The lawsuit alleges that Gill made defamatory statements against the men on a large electronic sign outside Gill’s business, The Mortgage Specialists. The men allege that he has been posting these defamatory signs for years. The signs have drawn public criticism in the area for their use of vulgar language. Further, the men allege that Gill defamed them on the radio and over social media. Gill posts the details of his allegations of corruption on his website, and also purchases radio time for a regularly scheduled radio call-in program where he discusses corruption. The most recently noted sign refers to plaintiffs as “drug dealers” and accuses another of extortion.

Gill has often publicly accused a plaintiff of being arrested years ago for possession of cocaine, citing what he claims is the arrest number for the charge. The plaintiff has maintained that the number cited by Gill comes from 1987, and there is no record of any arrest or conviction. He said he is not sure what the purported arrest number signifies or corresponds to.

A superior court judge was scheduled to hear arguments requesting an injunction to remove the sign and order that Gill cease making defamatory statements while the suit is pending.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Seek Justice for Victims of Libel and Defamation

If someone has made harmful, defamatory statements against you or your business, contact the experienced Philadelphia business lawyers at Sidkoff, Pincus & Green. With offices conveniently located in Philadelphia, we represent clients throughout Southeastern Pennsylvania and South Jersey. Call us at 215-574-0600 or contact us online today.

Philadelphia Business Lawyers: Arbitration Decision

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Arbitration Decision from 7th Circuit Leaves Split Among Appellate Courts

In a recent decision, the U.S. 7th Circuit Court of Appeals ruled that a health care software company was in violation of the National Labor Relations Act (NLRA) when it required its employees to waive their rights to pursue wage-and-hour claims in class actions. In the case, Lewis v. Epic Systems Corp., Lewis brought a claim in federal court against his employer, Epic Systems, asserting they had violated the Fair Labor Standards Act (FLSA) by depriving him and a few fellow employees of overtime pay. No. 15-2997, 2016 WL 3029464 (7th Cir. May 26, 2016). Epic Systems moved to dismiss the claim and compel individual arbitration, in light of an arbitration clause requiring groups of employees to bring any wage-and-hour claims against the company only through individual arbitration and prohibiting collective arbitration or class action. Id.  Lewis claimed the arbitration clause was unenforceable because it violated Section 7 of the NLRA, which states that “employees shall have the right to… engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Epic Systems contended that the clause was enforceable under the Federal Arbitration Act (FAA). Id. Both the district court and the 7th Circuit agreed with Lewis. Id.

This decision directly opposes a decision from the 5th Circuit, leaving a split among the appellate courts and increasing the possibility that the Supreme Court will take up the issue. In 2013, the 5th Circuit overturned a National Labor Relations Board decision in D.R. Horton, Inc. v. N.L.R.B., and allowed employers to have these mandatory individual arbitration agreements under the FAA. 737 F.3d 344 (5th Cir. 2013). This split in decisions will leave a lot of uncertainty, and possibly more lawsuits, for employers not in those circuits who have or want to enforce arbitration agreements and class-action waivers.

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

Philadelphia Business Lawyers: Viacom Lawsuit

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A battle has ensued over the future of Viacom, a $40 billion media empire founded and controlled by Sumner M. Redstone in 1987. Mr. Redstone recently turned 93 years old. His daughter, Ms. Shari Redstone, who was long estranged from her father, has now reconciled with him. As a result, Directors from Viacom allege that they have been pushed aside, and are challenging his mental capacity in court. The directors claim that Ms. Redstone is orchestrating an unlawful corporate takeover, and that she is manipulating her father to change the terms of the trust that control his companies. In response, Mr. Redstone’s legal team has asked the court to confirm the changes that he has made to the trust.

The claim alleges that things came to a head when Mr. Redstone suddenly and unexpectedly removed directors from the trust who were set to gain control over all of his companies, including Viacom. The directors immediately sought to block the moves on grounds that Mr. Redstone suffers from profound physical and mental illness, and is subject to the undue influence of his daughter. They further claim that the new arrangement tips the balance of power to her, giving her great control over the companies should Mr. Redstone pass away or become incapacitated.

According to Mr. Redstone’s legal team, there is no evidence to support these allegations, and he has been clear and unequivocal that the plaintiffs should be removed as trustees. The judge agreed, but did not rule on Mr. Redstone’s competency.

The plaintiffs assert that Mr. Redstone has not appeared in public for nearly a year, and can no longer stand, walk, read, write or speak coherently. They also claim that he requires a feeding tube to eat and drink, and his saliva must be manually suctioned around the clock to prevent breathing complications.

The lawsuit further alleges that Mr. Redstone’s daughter made changes to her father’s last will and testament. Allegedly, after years of estrangement, she has inserted herself into his home, and isolated him from everyone, including his business colleagues. The directors allege that these actions could have far-reaching negative consequences for thousands of Viacom’s shareholders and employees.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Provide Skilled Representation in Business Litigation

Philadelphia business lawyers at Sidkoff, Pincus & Green have extensive experiencing litigating commercial disputes. To learn more about how we can leverage our experience to help you, call us at 215-574-0600 or contact us online today. With offices located in Philadelphia, we represent clients throughout Southeastern Pennsylvania and South Jersey.