Category: Business Law

Philadelphia Commercial Lawyers: Breach of Fiduciary Duty

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To establish a breach of fiduciary duty in Pennsylvania, a party must first demonstrate the existence of a fiduciary relationship. A fiduciary relationship exists between two parties when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relationship. Restatement (Second) of Torts § 874, cmt. a (1979).

The Court in Edelstein & Diamond, L.L.P. v. Orloff, 2005 WL 1648191, at *2 (Pa. Com. Pl. June 29, 2005) held that Plaintiff failed to demonstrate a fiduciary relationship with Defendant because it had merely hired Defendant to manage files. A fiduciary relationship must go beyond “mere reliance on a superior skill”, but rather be a relationship characterized by “overmastering influence” on one side and “weakness, dependence, or trust, justifiably reposed” on the other side. Fiduciary relationships are marked by a disparity in power which could give rise to a potential abuse of said power. The Court found no such relationship in this case, as Defendant was not in a position of power over Plaintiff.

For more information, call Philadelphia Commercial Lawyers at Sidkoff, Pincus & Green at 215-574-0600 to schedule a consultation or submit an online contact form.


Philadelphia Business Lawyers Discuss Pop Star’s Win in Passing Off Claim

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Another win for pop-star Rihanna, as a UK Court of Appeals upheld an earlier court’s decision to prohibit a T-shirt maker from the unauthorized use of the singer’s image. The original lawsuit, filed by Rihanna in 2012, claimed that fashion retailer, Topshop, misrepresented the celebrity’s endorsement when it began selling t-shirts bearing her image. The shirts were printed with a photograph of Rihanna taken during a live video shoot for one of her albums. The picture was taken by an independent photographer who licensed its use to Topshop, but the singer never gave her consent. The court decided Topshop’s action amounted to “passing off” – illegally exploiting an unregistered trademark.

Generally, aside from privacy issues, there are few laws in the UK that protect celebrities from having their pictures published without their consent, such as there are in the U.S. Celebrities who wish to control the reproduction of their image must rely on some other cause of action, such as a breach of contract, infringement of copyright or, as in Rihanna’s case, passing off.

“Passing off” refers to a misrepresentation of endorsement. Topshop had made considerable efforts to emphasize its relationship with certain pop-stars, and with Rihanna in particular. The company created a contest in 2010 where the prize was a personal shopping appointment with Rihanna at Topshop. They also launched a significant publicity campaign around a visit the star made to the store in early 2012. In regard to the unauthorized t-shirts being sold by Topshop, Rihanna argued that buyers were likely to believe that the product was endorsed by her, and would purchase the shirt based on that false belief. Moreover, she argued that this would be damaging to her goodwill.

Throughout the world, Rihanna is regarded as a fashion icon. Her fashion activities include promoting Gucci and Armani clothing and designing clothes and endorsing products for River Island, as well as some previously authorized goods sold by Topshop. Rihanna’s reputation as a musical artist and style leader has earned her goodwill rights in not only the music industry, but in the fashion world as well. She argued that damage to her goodwill would lead to a decline in sales in her marketing business, and a loss of control over her reputation in the fashion industry. The court agreed and banned Topshop from selling the shirts without informing prospective buyers that the product had not been approved or authorized.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Clients in Cases of Intellectual Property and Trademark Infringement

Philadelphia commercial business lawyers at Sidkoff, Pincus & Green have experience handling complex litigation involving rights of publicity, as well as copyright and trademark disputes. Our office is located in Philadelphia and we represent clients throughout Pennsylvania and New Jersey. To discuss your case with one of our highly qualified Philadelphia business lawyers, call 215-574-0600 today or contact us online.

Philadelphia Business Lawyers: Volkswagen Chairman Resigns Amid Shareholder Dispute

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Ferdinand Piech, chairman of the board of Volkswagen AG, ended a 20 year reign at Europe’s largest automaker when he stepped down after a public dispute with other board members. His wife, Ursula Piech, also stepped down from her position on the board. The move was made shortly after Piech failed to draw shareholder support regarding his criticism of CEO, Martin Winterkorn.

Piech served as Volkswagen CEO from 1993 to 2002 and is credited for bringing the automaker back from the brink in the 1990s and transforming it into a global powerhouse that rivals GM and Toyota. Since the time Piech came into power, the company successfully acquired sports-car and luxury brands Porsche, Lamborghini and Bentley; new brands such as Czech car maker Skoda; Ducati motorcycles; as well as MAN and Scania heavy trucks.

A shareholder dispute began last month when Piech publicly challenged the authority of current CEO Martin Winterkorn and dismissed him as a potential successor as chairman. The other board members pushed back, stating that Winterkorn was the best possible chief executive for Volkswagen. Piech has not explained the reasoning behind his attack on Winterkorn. The two had worked closely together for decades.

Winterkorn, who ranks # 58 on Forbes list of the world’s most powerful people, is said to have led the company to record profits since becoming CEO in 2007. Members of Volkswagen executive committee are supportive of Winterkorn’s continued role as CEO and have even suggested extending his contract beyond the end of 2016.

Analysts generally agree that Piech’s departure could be a plus for the company, whose core brand has struggled to keep costs down and gain market share in the United States. In combination with his highly successful career with Volkswagen, Piech was recognized as having a volatile and ruthless management style. Despite his resignation, Piech is still a major shareholder in Volkswagen and can exercise his influence through his stake as well as through the family holding structure, which has rules in place to prevent the sale of public stock.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Handle all Aspects of Business Law in Pennsylvania

Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. are experienced negotiators, mediators, and litigators in all aspects of business law. Our highly reputable law firm regularly assists clients in cases involving contract negotiations, shareholder disputes, breach of fiduciary duty, and other complex litigation matters. Our business law firm is located in Philadelphia and represents clients throughout Pennsylvania and New Jersey. Call 215-574-0600 to schedule a consultation or submit an online contact form.

Philadelphia Business Lawyers Handling Physician Agreement

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Physicians face many of the same preliminary steps in the hiring process as the average corporate employee, including the development of contractual agreements.  Often, physician contracts include areas that are typical of corporate employment agreements, such as compensation, benefits and restrictive covenants.  However, there are other areas, such as issues concerning hospital privileges, medical malpractice coverage, and the division of hours between clinical, research and academic work, which are unique to physician agreements.  Moreover, physicians often have unique financial concerns, such as the payment of liability insurance, continuing medical education expenses, and other costs which are unique to the medical profession.   For these reasons, it is advisable that a physician utilize an attorney who is experienced with physician contracts.  As in any business arrangement, contractual agreements are important to both the employer and employee.  Serious financial obligations and penalties can result when the contracts are legally challenged.  A competent and experienced business contract lawyer in Philadelphia can ensure that physicians are protected and fully understand their obligations.

Philadelphia Business Attorneys at the Law Offices of Sidkoff, Pincus & Green Provide Legal Counsel and Representation in All Areas of Business Law

Philadelphia business contract lawyers of Sidkoff, Pincus & Green have been providing highly skilled legal counsel and representation in matters of business law for almost 60 years. If you or someone you know needs a business attorney with experience and knowledge, call our Philadelphia business lawyers at 215-574-6000or complete our online contact form to schedule a consultation today. Conveniently located in the heart of downtown PhiladelphiaSidkoff, Pincus & Green serve clients throughout the state of Pennsylvania, including Delaware County, Montgomery County, and Philadelphia County.

Philadelphia Business Attorneys: 10 Missteps Businesses Make

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Starting a new business is as exciting as it is demanding. With so many details to consider, it is not uncommon for eager entrepreneurs to overlook certain legalities that could potentially get them into major hot water. In these cases, even the most well-intentioned business owners could be breaking the law without even knowing it, putting themselves at risk of litigation, loss of business license, or even criminal charges.

When considering starting a business, it is extremely important to protect yourself and your business from legal troubles that could end up costing time, money, or your freedom. Seek the advice and counsel of an experienced and reputable business lawyer who can help you avoid these and other legal missteps.

Following are some common mistakes entrepreneurs can make:

  1. Failing to obtain all necessary state permits and licenses. Requirements can vary depending on the type of business, the location of headquarters and operations, and what government rules apply.
  2. Failure to make payroll tax deductions. Employers who fail to withhold federal income taxes and turn them over to the federal government are playing a dangerous game.
  3. Deducting personal expenses as business expenses. Determining what expenses are considered business and what are personal can be tricky, especially because many expenses are useful for both purposes.
  4. Misclassifying employees as independent contractors. Misclassification can lead to a myriad of legal problems down the road, including discrimination, wage and hour disputes, Workers’ Compensation, unemployment, and employee benefits.
  5. Classifying all employees as exempt, whether they are or are not. Both federal and state laws rely on a variety of criteria to determine whether an employee is exempt – salary is not the only factor.
  6. Failing to comply with federal and state wage and hour statutes. State laws may vary, so it is wise to keep yourself informed on statutes that apply to employee overtime and rest and meal breaks.
  7. Failing to implement appropriate workplace policies. Policies regarding discrimination and harassment should be prepared and communicated to employees in order to protect the company against an employee claim. Although many federal discrimination laws apply only to companies with 15 or more employees, there may be state discrimination or harassment laws applicable to companies with as few as four employees.
  8. Improper use of investor funds. Spending money given to you by people in trust could be jeopardizing your investor relations at best, or result in being faced with charges of embezzlement at worst.
  9. Selling recalled or counterfeit products. Both are illegal, whether you knew what you were selling was recalled or counterfeit or not.
  10. Not charging, reporting, or collecting sales tax. A business attorney can help to ensure that all state and local sales taxes are charged properly.

Philadelphia Business Law Firm of Sidkoff, Pincus & Green Provide Sound Legal Counsel for Businesses

Business law can be difficult and complex. There are rules; there are exceptions to the rules; and then there are exceptions to the exceptions. Philadelphia business lawyers at Sidkoff, Pincus & Green have the knowledge and the experience to help your growing business succeed. We offer a wide range of business services ranging from contract law, employment law, trademark litigation and governmental over-reaching. We have the strategies to help you avoid litigation, and the knowledge and skills to protect you when litigation is necessary. Call us today at 215-574-0600 or contact us online to learn how we can help you protect your business.

Philadelphia Business Lawyers: Tech Giants Agree to $415 Million Settlement for Anti-trust Violations

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Four of Silicon Valley’s largest tech companies, Apple, Google, Adobe and Intel, have agreed to a $415 million settlement over claims that they conspired with one another in their employee hiring practices in order to stifle competition and suppress wages.

The settlement puts an end to a class-action lawsuit filed in 2011 on behalf of more than 64,000 programmers and engineers against Apple, Google, Intel, Adobe, Lucasfilm, Pixar and Intuit. The lawsuit claimed the defendants entered into a series of agreements with each other not to recruit or hire each other’s employees. This included a strict policy to refrain from soliciting, cold calling, recruiting, or otherwise competing for employees.

The plaintiffs alleged that the companies were in violation of state and federal antitrust laws that prohibit practices intended to limit employee’s power to negotiate for higher salaries.

Evidence of the pact included troves of embarrassing email conversations between high-ranking executive officers of the companies that detailed the anti-competitive agreement. In at least one such email, a top executive assured his rival of the swift termination of a recruiter who had dared to violate the pact. Other emails discussed the handshake agreement and its need to be kept quiet in order to avoid a lawsuit.

Lucasfilm, Pixar, and Intuit reached an earlier settlement of $20 million.  Apple, Google, Adobe, and Intel agreed to the $415 million settlement after a previous $324.5 million proposal was rejected in August on the grounds that it didn’t offer enough money for the affected workers.

The companies likely agreed to the deal in order avoid the risk of further litigation. If no settlement was made, the case was set to go before a jury this spring. A loss could have resulted in damages exceeding $9 billion, in addition to marring the public’s perception of the tech powerhouses.

This most recent settlement amounts to approximately $6,400 per employee. The companies have also agreed to refrain from restricting hiring and recruiting practices among themselves.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green handle Business matters including Antitrust Litigation

At the Law Offices of Sidkoff, Pincus & Green, our Philadelphia business attorneys we handle all aspects of business law, including antitrust litigation, class action lawsuits and appeals, employment discrimination, and whistleblower actions. We combine our superior knowledge of the law with a fearless and unwavering commitment to justice in order to produce the best possible outcome for our clients.

Our office is conveniently located in Center City Philadelphia, allowing us to represent clients throughout the region, including Philadelphia County, Delaware County, and Montgomery County. To discuss your case with one of our highly skilled and experienced Philadelphia business lawyers call 215-574-0600 today or contact us online to schedule your confidential consultation.

Philadelphia Business Lawyers: Sprint Acquisition of RadioShack is Pending

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RadioShack Corp. has been losing customers to online retailers and struggling to turn a profit in recent years.  According to Bloomberg, RadioShack Corp. is negotiating the sale of some of its store leases to wireless carrier, Sprint Corp., as part of a bankruptcy deal.   The balance of store leases unpurchased by Sprint would be closed. However, the terms of this acquisition could change or another bidder could surface before a deal is reached. The Sanpower Group, who took the chain of Brookstone stores out of bankruptcy, is also negotiating with RadioShack.

As a result of RadioShack failing to submit a business plan addressing compliance issues regarding New York Stock Exchange rules, the trading of RadioShack stock has been suspended. The value of RadioShack shares dropped off to 24 cents this week which amounted to a 90% loss of its value from 12 months ago.

Sources say that RadioShack’s largest shareholder, Standard General LP, has offered the struggling company a reorganization loan, the terms of which include the sale of assets in a bankruptcy.   A battle with lenders over control of the company could be avoided by liquidating the stores. One source claims that lender Salus Capital Partners LLC has presented RadioShack with an alternate financing plan. Spokespeople for RadioShack, Standard General LP, Salus at Integrated Corporate Relations Inc. and Sprint have all declined to comment on any alleged talks with RadioShack.

Sprint plans to acquire up to 2,000 of the 4,000 RadioShack locations. The CEO announced to investors at a Citigroup Inc. conference in January that Sprint has plans to expand the company by adding more retail locations to dramatically grow their distribution.

Philadelphia Business Attorneys at Sidkoff, Pincus & Green Represent the Best Interests of Corporations

Philadelphia business lawyers at Sidkoff, Pincus & Green are skilled litigators and negotiators experienced in providing legal representation and advice to companies during bankruptcy and restructuring.  Our offices handle all types of business law and commercial litigation matters. We are conveniently located in Philadelphia, Pennsylvania, and we represent clients throughout the country including Pennsylvania, New Jersey, New York, Massachusetts, Maryland, Florida, and Texas.  Contact a knowledgeable Philadelphia business attorney at Sidkoff, Pincus & Green by calling 215-574-0600 or submit an online contact form.

New Jersey Business Attorneys Report on Latest Baseball Antitrust Matter

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Major League Baseball, one of the nation’s largest corporations, has found itself amidst a new round of antitrust litigation involving the move of the Oakland Athletics baseball team to San Jose, California.   According to the latest decision from the U.S. Court of Appeals for the Ninth Circuit, efforts by Major League Baseball to block the team’s move to San Jose did not violate federal antitrust laws.

In 2010, the City of San Jose sought approval from baseball commissioner Bud Selig to move the Oakland baseball team to their city.  Selig denied this request effectively blocking Oakland from moving the baseball team to San Jose.  The City of San Jose proceeded to file suit in the U.S. District Court for the Northern District of California alleging that Major League Baseball was denying the rights of baseball clubs and cities to negotiate relocations and stadium deals in violation of federal antitrust laws.

Congress passed the first federal antitrust laws (including the Sherman Act, Federal Trade Commission Act and Clayton Act) to protect economic liberty and free trade by proscribing unlawful mergers and business dealings.  Private parties, like Major League Baseball, may bring private causes of action against unlawful monopolies and business practices which restrain free trade.

U.S. District Court Judge Ronald M. Whyte initially denied San Jose’s claims citing a 1922 U.S. Supreme Court ruling that created a federal antitrust exemption for baseball clubs on the basis that baseball clubs were not engaged in “interstate commerce.”  The City of San Jose appealed the lower court ruling.   Earlier this month, the U.S. Court of Appeals upheld the lower court’s ruling that Major League Baseball did not violate federal antitrust laws by barring the team’s move to San Jose.  The Oakland A’s announced last summer the signing of a ten year deal to remain in Oakland.

At the Law Offices of Sidkoff, Pincus & Green, our experienced New Jersey business lawyers handle all types of business law matters including antitrust and intellectual property cases.  We represent businesses of all sizes in legal matters pending in state and federal courts.  The Law Offices of Sidkoff, Pincus & Green are conveniently located in Philadelphia, Pennsylvania to serve our business clients throughout the Delaware Valley. To schedule your free confidential consultation, call us today at 215-574-0600 or submit an online inquiry form.

Private Parties as State Actors under Section 1983

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“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law….”  42 U.S.C. § 1983.

Thus, to establish a claim under Section 1983, a plaintiff must plead a deprivation of a right secured by the Constitution and the laws of the United States that was committed by a person acting under color of state law.  Machon v. Pennsylvania Dept. of Public Welfare, 847 F.Supp.2d 734 (E.D.Pa. 2012).  Where a plaintiff lodges a Section 1983 claim against a private party (as opposed to a governmental entity), the defendant can be held liable where he is “fairly said to be a state actor.”  Pugh v. Downs, 641 F. Supp.2d 468, 472 (E.D.Pa. 2009).  See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982) (stating that our cases have insisted that conduct allegedly causing deprivation of federal rights be fairly attributable to the state).

A private party can be “fairly said to be a state actor” for purposes of Section 1983 under four tests.  First, under the “close nexus” test a private party can be fairly said to be a state actor where “there is a sufficiently close nexus between the state and the challenged action of the [private] entity so that the action of the latter may fairly be treated as that of the state itself.”  Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (holding state responsible for private decision where it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State).  Second, under the “symbiotic relationship” test a private party can be fairly said to be a state actor where “the state has so far insinuated itself into a position of interdependence” with a private party that “it must be recognized as a joint participant in the challenged activity.”  Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (holding privately owned restaurant’s refusal to serve an African American customer constituted state action where the restaurant leased space from a parking garage owned by state agency).  Third, under the “joint action” test a private party can be fairly said to be a state actor where a private party is a “willful participant in joint action with the State or its agents.”  Lugar,457 U.S. at 941, 102 S.Ct. 2744 (1982).  Fourth, under the “public function” test a private party can be fairly said to be a state actor where the private party has been “delegated…a power traditionally exclusively reserved to the State.”  Terry v. Adams, 345 U.S. 461, 468-470, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (state action found where private actor administered election of public officials).

If you think you might have an action under Section 1983, please contact the experienced lawyers at Sidkoff, Pincus & Green in Philadelphia, who are licensed to practice law in all courts in Pennsylvania and New Jersey.

Philadelphia Business Lawyers: Intentional Interference with Contractual Relations under Pennsylvania law

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The tort of intentional interference with existing contractual relations is governed by Section 766 of the Restatement (Second) of Torts.  See Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 982 A.2d 94 (Pa.Super. 2009), aff’d, 610 Pa. 371 (2011).

Section 766 provides: “One who intentionally and improperly interferes with the performance of a contract…between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.”  Restatement (Second) of Torts § 766 (1979).

“The necessary elements of the cause of action are (1) the existence of a contractual relationship between the complainant and a third party; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual damage as a result of defendant’s conduct.”  Walnut Street Associates, Inc., supra at 98; Small v. Juniata College, 682 A.2d 350, 354 (Pa.Super. 1996).

In determining whether a particular course of conduct is improper for purposes of setting forth a cause of action for intentional interference with contractual relationships, the court considers: 1) the nature of the actor’s conduct; 2) the actor’s motive; 3) the interests of the other with which the actor’s conduct interferes; 4) the interests sought to be advanced by the actor; 5) the proximity or remoteness of the actor’s conduct to interference, and 6) the relationship between the parties.  Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278 (Pa.Super. 2010); Restatement (Second) of Torts § 767 (1979).

Further, there are specific circumstances in which interference with a contractual relationship is not improper.  For example, one who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not improperly interfere with the other’s contractual relation by giving the third party truthful information or honest advice within the scope of a request for advice.  See Restatement (Second) of Torts § 772 (1979); Walnut Street Associates, Inc., supra.

If you think you might have a claim for intentional interference with contractual relations, please contact the experienced lawyers at Sidkoff, Pincus & Green in Philadelphia at 215-574-0600, who are licensed to practice law in all courts in Pennsylvania and New Jersey.