Category: Business Law

Philadelphia Business Lawyers: Disparaging Trademarks

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Trademarks are a business asset that help identify a business. Most trademarks promote the business in a positive light. Some trademarks are contested because they are too close to another trademark. Other trademarks can be considered offensive. Trademark applications and contests over trademarks are decided by the US Patent and Trademark Office (USPTO) or the Trademark Trial and Appeal Board (TTAB.)

Constitutional Law vs. Trademark Law

The USPTO and TTAB currently decide if a trademark is disparaging based on whether the trademark refers to an identifiable group and whether a substantial part of that group considers the trademark to be offensive. Factors used to decide whether trademarks are disparaging are how a dictionary defines the key words, as well as how and where the trademark will appear.

Offensive or disparaging trademarks raise the issue of whether they are protected by the US Constitution’s Freedom of Speech provision of the First Amendment. Trademark applicants claim that the USPTO and TTAB cannot deny the application even if the trademark is disparaging because the denial violates the First Amendment’s right to free speech. Those who think disparaging trademarks should be denied rely on the federal Lanham Act.

Current Cases

The case of In re McGinley decided the issue in favor of the USPTO and TTAB. The case reasoning was that applicants were still free to use the disparaging words to identify their business – they just could not get an approved trademark for it.

The federal case involving the Asian band relied on In re McGinley to hold that the band could not get a trademark. A dissenting judge in the Asian band case reasoned that it might be time to revisit the In re McGinley decision because recent law has held that commercial speech is protected by the U.S. Constitution. The federal court overseeing the Asian band case agreed with the dissenting judge and recently decided it would revisit the constitutionality of denying disparaging trademarks.

Philadelphia Business Lawyers at Sidkoff, Pincus and Green handle Intellectual Property Issues

Philadelphia business lawyers at the Law Offices of Sidkoff, Pincus and Green have experience handling intellectual property issues and are knowledgeable in current trademark laws. Our commercial litigation lawyers in Philadelphia have the experience to help businesses overcome the constitutional and legal challenges they often face. Call 215-574-0600 or fill out our online contact form to discuss your intellectual property concerns with an experienced Philadelphia business lawyer today.

Philadelphia Business Attorneys Explain Breach of Fiduciary Duty

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A fiduciary duty is a legal obligation to have the best interest of another party when making decisions. A lawyer has a fiduciary duty to their client; as does a board member share that same duty to the company’s shareholders. This obligation exists whenever the relationship involves a special dependence on the fiduciary to implement his expertise in acting for the client. The fiduciary must knowingly accept that trust and confidence to exercise his expertise and discretion to act on the client’s behalf. When a legal fiduciary relationship exists, the law prohibits the fiduciary from acting in any manner unfavorable to the interests of the client, including only acting to benefit themselves.

In Sutow v. Family Endowment Partners, two investors sought damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). The Sutows claimed over $20 million in investments that were recommended by their advisors were negligent and were similar to a Ponzi scheme. The firm had failed to disclose personal interests in some of the companies recommended for investment to the Sutows. One company was considered “technically insolvent” by an expert for the Sutows and another company was behind on loan payments. Other recommendations and expectations of those companies showed a lack of due diligence according to an expert for the Sutows. Although the firm argued that brokers do not owe a fiduciary duty on non-discretionary trades, the arbitrator awarded $48.4 million to the Sutows.

Philadelphia Business Attorneys at Sidkoff, Pincus & Green handle Breach of Fiduciary Duty Cases

Philadelphia business attorneys at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of business law and commercial litigation. Our dedicated team of trial lawyers in Philadelphia assist clients in a wide range of complex litigation matters, including breach of fiduciary duty. Call 215-574-0600 or fill out our online contact form to discuss your breach of fiduciary duty concerns with an experienced Philadelphia trial lawyer today.

Philadelphia Business Lawyers:  Cyber-hacking and Class Action Lawsuits

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Recent news coverage has shown a proliferation in cyber-hacks—hackers stealing information about former and current employees including names, addresses, Social Security numbers, employment records, including compensation records, human resources, records, medical information and financial information from both large corporations as well as the Government.

Class action litigation has been initiated as a result of these data breaches. In order for a plaintiff to bring an action as a result of a data breach a plaintiff must have suffered an injury to have standing. That injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). If identity was “stolen” but has not been used by anyone else, can you still bring a lawsuit? A plaintiff who can prove that a hacker used his information has a much stronger argument than a plaintiff who can allege only an increased risk of identity theft.

The Supreme Court recently granted certiorari in Spokeo v. Robins, 724 F.3d 409 (9th Cir. 2014), which could change the injury requirement for a plaintiff trying to bring a lawsuit after their personal information has been hacked. The court will have to decide whether Congress may confer standing on a plaintiff who had not suffered a concrete injury, but rather permit a private right of action based on the violation of a federal statute.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Protect Victims of Cyber-Hacking

Philadelphia business lawyers at Sidkoff, Pincus & Green have the experience to pursue lawsuits for individuals who have had their privacy violated by having their personal information hacked. Our Philadelphia business law firm offers free consultations at our convenient Philadelphia, Pennsylvania location. Call Sidkoff, Pincus & Green at 215-574-0600 or complete our online contact form to see how a Philadelphia business lawyer at our office can help you.

Philadelphia Business Lawyers: New Report Released on Trademark Litigation

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Trademark litigation is a niche area of the legal field, with over 4,000 cases filed last year. Lex Machina, a legal analysis company, recently conducted a comprehensive study on trademark litigation. The report examined all aspects of trademark cases and defined metrics such as number of filings and amounts of damages awarded. The Trademark Litigation Report published findings that since 2009, trademark lawyers have filed nearly 25,000 cases, resulting in over nine billion dollars in damage payments over the course of five years.

The purpose of the study, according to Lex Machina, was to help business attorneys determine effective strategies for all types of trademark litigation cases by quantifying results from past cases. The Trademark Litigation Report is a useful resource for trademark lawyers, especially for its analysis of damage award payouts. The report determined that of the nine billion dollars in damages paid out, more monies have been awarded by juries rather than by judges. Furthermore, most cases are decided through default judgements.

Litigation Cycle of Trademark Cases

The litigation cycle of each type of case was also measured. Certain trademark cases reach an injunction stage much faster than other cases, specifically cases that involve cybersquatting. Copyright cases and patent cases take longer to get to the injunction stage, while cases involving false advertising almost always face a slow, lengthy process during both initial and long-term injunction.

Lex Machina has also conducted reports analyzing patent litigation in several different districts, and the trademark report follows the same patterns by looking at cases in high profile judicial areas such as the Southern District of New York, the Southern District of Florida, the Central District of California and the Northern District of Illinois. These courts deal with major and luxury fashion brands as well as music and film trademark cases.

The Trademark Litigation Report is divided into two sections; the first part of the report defines and analyzes metrics for the past five years of trademark cases, while the second section details how major retailers and brands have been involved in trademark law over the course of the study. Specific companies profiled include BMW, Nike, Chanel and Dunkin’ Donuts, and the report includes information on the overall outcome of each case.

Trademark Lawyers in Philadelphia at Sidkoff, Pincus & Green help Commercial Clients Avoid and Pursue Litigation When Necessary

At the Pennsylvania business law firm of Sidkoff, Pincus & Green our trademark lawyers in Philadelphia have experience representing business clients in claims involving commercial contract issues, intellectual property, trademark infringement and misappropriation of trade secrets, among other business law and commercial litigation matters. We provide experienced legal counsel on how to avoid trademark litigation and on how to pursue a trademark violation claim if one is warranted. Contact our Philadelphia trial lawyers today to schedule a consultation by calling 215-574-0600 or submit an online inquiry.

Philadelphia Whistleblower Lawyers : Vanguard Accused of $1 Billion Tax Fraud

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The city of Philadelphia is home to one of the most active jurisdictions for Qui Tam lawsuits. A Quit Tam suit is a type of lawsuit brought by a third party whistleblower on behalf of the government. In the United States, under the False Claims Act, 31 U.S.C. § 3729 et seq., “an individual with knowledge past or present of fraud committed against the federal government may bring suit its behalf”. If their case recovers funds for the government, a whistleblower can be awarded substantial sums of money as a percentage of the settlement.

Pennsylvania based investment company Vanguard Group, which manages nearly $3 trillion in assets, is currently in the midst of a qui tam suit brought by its former employee David Danon, who alleges that the company illegally manipulated transfer pricing to keep costs artificially low. Danon’s suit states that after expressing serious concerns about the transfer pricing arrangements, the company brushed aside his concerns and eventually fired him.

Vanguard filed a motion to dismiss the case, arguing that as a former tax attorney for the company, Danon cannot file suit against them. Furthermore, Vanguard alleges that Danon improperly used privilege and confidential information to bring the suit.

The lead counsel in Danon’s suit, Stephen Sorenson of Thomas, Alexander & Forrester LLP remains optimistic about the suit, stating in an interview with Forbes Magazine that he is hoping for a hearing by early next year. The suit alleges a violation of federal and state tax laws, costing taxpayers more than $1 billion.

Philadelphia qui tam lawyers at Sidkoff, Pincus and Green represent third party whistleblowers throughout Philadelphia and New Jersey.  If you or someone you know needs a whistleblower lawyer in Philadelphia call Sidkoff, Pincus and Green at 215-574-0600, or complete and online contact form to schedule a consultation today.

Philadelphia Business Lawyers: Whistleblower Retaliation Case

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A Fresno, California cardiac perfusionist is suing Community Regional Medical Center and a well-known cardiac surgeon for wrongful termination and retaliation after being identified as a whistleblower. Community Regional Medical Center was fined $75,000 in April of 2012 after James Robillard reported that the cardiac surgeon named in the suit left the operating room before closing his patient’s chest.  An inexperienced assistant was left to complete the surgical procedure, but did not perform it properly.  As a result, the patient’s heart stopped, causing him to bleed and be deprived of oxygen.  He was revived and put on life support but remains in a vegetative state in a nursing home.

The patient’s family filed a medical malpractice suit against the hospital and surgeon in December of 2013.  When the case went to trial, all pertinent records were subpoenaed, including the whistleblower file.  James Robillard was identified as the person originally reporting the incident.  He was also identified by name in two news reports on the case, causing him loss of wages because other medical facilities were reluctant to hire him.

Robillard is seeking $25,000 in punitive damages, and another $10,000 in fines.  He claims that being identified as the whistleblower in this case has had such an effect on his professional career that he had to relocate to Monterey, California in order to find work.  Community Regional Medical Center and the cardiac surgeon named in the suit contend that the claims are absurd and report that Robillard was fired for violating hospital policy on patient confidentiality.  They claim Robillard accessed medical records of patients without authorization, and in doing so, caused a breach in the hospital’s patient confidentiality policies.  Patients were informed of this breach and Robillard was fired.

Community Regional Medical Center and the cardiac surgeon deny all of the allegations brought against them.  The surgeon named in the case filed a $25 million defamation lawsuit against Robillard, but has since had the case dismissed.  The surgeon has the right to refile in the future.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Whistleblowers

Employees who report inappropriate and illegal business practices that have been wrongfully terminated may be protected by whistleblower laws.  If you or someone you know is in need of an whistleblower lawyer in Philadelphia, call Sidkoff, Pincus & Green at 215-574-0600 or complete our online contact form to schedule a consultation today.

The Philadelphia business lawyers of Sidkoff, Pincus & Green are located in the heart of Center City, Philadelphia and serve clients throughout the Philadelphia area, including Bala Cynwyd, Merion Station, Wynnewood, Darby, Narberth, Upper Darby, Sharon Hill, Cheltenham, Clifton Heights, Folcroft, Lansdowne, Drexel Hill, Elkins Park, Havertown, Glenolden, Ardmore, Gladwyne, Wyncote, Norwood, Holmes, Haverford, Delaware County, Montgomery County, and Philadelphia County.

Philadelphia Business Lawyers: Philadelphia Biotech Firm Pays $2.75 Million Settlement

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Philadelphia Biotechnology Company Hemispherx Biopharma has agreed to pay a $2.75 million settlement to resolve a class action lawsuit filed on behalf of shareholders. The plaintiffs allege that Hemispherx representatives made “material misrepresentations and omissions” concerning the success of clinical trials for the company’s latest drug candidate Ampligen while soliciting investments.

In 2013, the FDA rejected Hemispherx’s application to market Ampligen, a vaccine enhancer, after an advisory panel determined there was a lack of evidence to substantiate the drugs effectiveness. As a result, Hemispherx stock plunged in value by 43 percent, and the suit seeks to recover damages for investors who purchased or acquired common stock between March 14, 2012 and Dec, 2012. The proposed $2.75 million settlement cannot not be finalized until the final approval hearing scheduled to take place on July 22 at the U.S. District Court in Philadelphia.

Philadelphia business attorneys at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of business law, commercial litigation and shareholder disputes. For more information, call 215-574-0600 to schedule a consultation or contact us online.

Philadelphia Commercial Lawyers: Angie’s List Sues Amazon

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Angie’s List, a US-based paid subscription supported website containing crowd-sourced reviews of local businesses, has sued Amazon Local alleging theft of intellectual property. All together, the federal lawsuit suit levels a whole host of charges against Amazon, including misappropriation of trade secrets, theft, computer trespass, civil conspiracy and violations of the Computer Fraud and Abuse Act. According to the complaint, Angie’s List alleges that Amazon Local executives stole provider lists by signing up as members of the Angie’s List sight and copying provider profiles, member reviews, and other important proprietary information.

Angie’s List was founded in 1995 to create a national listing of home repair providers and other businesses where members that paying members can browse through and evaluate. In 2014, the company reported nearly $80 million in revenue. This past year, Internet retailing giant Amazon entered the home services procurement market through their subsidiary, Amazon Local. According to Angies List, “”Amazon Local has chosen not to devote the necessary time, resources and effort to compete legitimately with Angie’s List. … Instead, Amazon Local and its employees have chosen the shortcut of surreptitiously accessing and misappropriating Angie’s List’s proprietary information … through dozens (if not more) of Angie’s List membership accounts that were fraudulently obtained and misused’.

In the lawsuit, Angie’s Lists states that their membership agreement “”explicitly prohibits the use of Angie’s List’s accounts and information for commercial purposes”, contending that a dozen Amazon Local employees violated that contract. One of the defendants, Daniel Malamud, signed up for Angie’s List just after taking a job with Amazon Local. As an account executive for South Jersey, Malmud reviewed information for hundreds of service providers throughout the Philadelphia Area.

In a brief statement to the press, Angie’s List spokeswoman Cheryl Reed stated, “We welcome competition, but on fair and legal grounds.”

At Sidkoff, Pincus & Green, our dedicated team of Philadelphia commercial lawyers assist clients in a wide range of complex litigation matters. Our offices are located in Philadelphia and we represent clients throughout Pennsylvania and New Jersey. Call 215-574-0600 to schedule a consultation or submit an online contact form.

 

Philadelphia Business Lawyers: Breach of Contract

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To establish a breach of contract, there must be a legally binding contract (agreement) or bargained-for exchange that is then not honored by one or more of the parties to the contract. If one party fails to perform the contract in its entirety, or prevents the performance of the contract by the other party, the situation is easier to understand. The situation becomes more complex when the argument is over something subjective in nature, such as the quality of product, or the timing of work. The party who breaches the contract by not performing or improperly performing opens a possible claim for damages by the other party. When the contract is breached, the non-breaching party is relieved of his commitments under the contract.

The court in Giacone v. Virtual Officeware, LLC, 2014 WL 7070205, at *17 (W.D. Pa. Dec. 12, 2014) determined that a new sales strategy deployed at Virtual Officeware, LLC (“VOW”) resulted in a breach of contract. The Plaintiff was demoted during a restructuring of VOW’s sales department and lost benefits that accompanied his title, then forced to resign once he was no longer receiving compensation that was promised by his contract. VOW contended that their new strategy was not a breach because the employment agreement came before the restructuring of the department. The Defense also argued the commission terms in the agreement were only attached due to a mutual mistake.

The court found the employment agreement was a valid contract, which was breached by the Defendant. The violation caused the Plaintiff to lose his title, repeat customers, and commissions. Judgment was entered in favor of the Plaintiff in the amount of $883,871 for lost wages and $220,968 in liquidated damages.

Philadelphia commercial contract lawyers at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of business law and commercial litigation. Our dedicated team of commercial contract attorneys in Philadelphia assist clients in a wide range of complex litigation matters, including breach of contract. Call us at 215-574-0600 to schedule a consultation or submit an online contact form.

Philadelphia Business Lawyers: Shareholder Rights

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Recognized as the world’s largest asset management company, BlackRock is urging its portfolio companies to allow shareholders to nominate directors, a process also known as proxy access.  While BlackRock is leading the way in this most recent corporate governance campaign, the company has no plans to extend this right to its own investors at this time. This has put the company at odds with some of its leading shareholders, as well as its own corporate governance group.

BlackRock has become a leader in investor opinion, with high financial stakes in the majority of the leading companies in the United States. BlackRock has been proactive in their efforts to give shareholders a meaningful voice in corporate board elections. By engaging the public and private sectors, the company has significant influence on the voting process at annual meetings and has the ability to unseat entrenched board members and ensure a diverse presence in the boardroom.

Proxy Access to Shareholders

Three of BlackRock’s largest investors – Norges Bank Investment Management, Norway’s sovereign wealth fund, TIAA-CREF and T Rowe Price – support proxy access. In fact, T Rowe Price may grant director nomination rights to its shareholders within the year.  In March, Norges Bank will likely be introducing proxy access to its portfolio companies. A spokeswoman for Norges Bank said that proxy access will be on their agenda for all future dealings with corporations in the United States. She added that United States companies are expected to take a leadership role in proposing proxy access when deemed appropriate.

According to the head of BlackRock’s Americas corporate governance team, proxy access is a shareholder right, one that is essential to ensuring director accountability. That said, BlackRock believes proxy access should only be granted to shareholders if a company demonstrated serious corporate governance failings.  Maintaining the right to nominate directors helps to keep board members aware of shareholder concerns.

In most cases, BlackRock has voted in favor of director nomination rights for those shareholders who maintain more than three percent of a company for more than three years.  This may not apply to small companies or if a shareholder has too much power.

Opponents of proxy access argue that the companies are in the best position to nominate directors. Others say that there are technical difficulties surrounding the verification of shareholders’ qualifications. BlackRock has said that proxy access is currently not a topic of priority for their shareholders, although they intend to have an ongoing dialogue with their shareholders about this governance issue, one that continues to evolve.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Clients Facing Shareholder Disputes

Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. are experienced in handing all aspects of business law and commercial litigation. Our dedicated team of commercial contract attorneys in Philadelphia assist clients in a wide range of complex litigation matters, including shareholder disputes. Our highly reputable Philadelphia trial lawyers are conveniently located in Philadelphia and we represent clients throughout Pennsylvania and New Jersey. Call 215-574-0600 to schedule a consultation or submit an online contact form.