Category: Uncategorized

Best-Interest Contract Provision from DOL Fiduciary Rule

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The Best Interest Contract, sometimes referred to as BIC, is part of the Labor Department’s fiduciary rule. The Trump Administration has mandated a request for information to guide the Department of Labor (DOL) in its review of the rule to either change it, or eliminate it all together. Last week, in a lawsuit over the regulation, the DOL filed documents stating that it would be seeking an 18-month delay in the implementation of the remaining parts of the fiduciary rule. This 18-month waiting period will give federal agencies, such as the Securities and Exchange Commission (“SEC”), a chance to weigh in. 

What is the BIC provision? 

A BIC is a legally binding agreement that allows stockbrokers to earn variable compensation on products that they sell to retirement investors so long as they act in the investors’ best interests. The BIC provision allows investors to file class-action lawsuits over violations of this rule. Lobbyists want to have the rule modified or stricken.

The 18-month delay period will allow agencies, such as the SEC, plenty of time to undo the contract. Critics of the rule say that it is too complicated and that it raises liability costs. At this point, the only thing that is clear is that agencies will continue working on drafting the rule for at least a few years. The SEC has already put out a request for comment on fiduciary duty. The DOL’s request for information also indicates that lawmakers may add specific exemptions to the rule for the sale of certain retirement investment products, such as clean shares.

By delaying the rule’s finalization that the DOL wants to collaborate with the SEC, Finra, and state insurance regulators, it is a very difficult and complex issue. According to many commentators, there is no end in sight.  This can be extremely frustrating to those who work in compliance. It is impossible to advise clients how to comply with regulations when they are hanging in limbo.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Class Action Lawsuits

The Philadelphia FINRA lawyers at Sidkoff, Pincus & Green P.C. stay up to date on the latest changes in state and federal business law so that we can advise our clients with an eye to the future. Our trial lawyers represent clients in all types of FINRA lawsuits. To learn more about how we can help, call us today at 215-574-0600 or contact us online today.

Philadelphia Intellectual Property Lawyers Discuss Costco “Tiffany” Rings

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Recently, Tiffany & Co., sued Costco for selling millions of dollars’ worth of knock-off Tiffany rings. Costco described the rings as “Tiffany” rings on their signs. Tiffany & Co. argued that this was misleading to customers and falsely suggested that the rings were actually designed and manufactured by the famous jewelry maker.

Tiffany & Co. was the first company to set rings in a claw to show more sparkle and light refraction. Prior to its innovation, diamonds were encased in a metal cup, reducing the luminosity of the stone. Now, all rings set in a claw setting are colloquially referred to as “Tiffany setting” rings.

Tiffany & Co. was successful in its suit and the Court barred Costco from using the word “Tiffany” to describe products not associated with the actual Tiffany jewelry brand, and ruled that Costco should pay Tiffany & Co. over $11 million plus interest, and nearly $9 million in punitive damages.

Costco has announced that it plans to appeal the decision, emphasizing that the rings were not stamped with the Tiffany & Co. name, but rather the name of the company that manufactured them. Further, Costco argues that the rings were accompanied by appraisals that did not say “Tiffany & Co.” The receipts also did not mention that the rings were Tiffany rings and the infringement was limited to the signage promoted by Costco to sell the rings in its retail outlets.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in All Types of Trademark Disputes and Intellectual Property Matters

At Sidkoff, Pincus & Green P.C., we pride ourselves on providing clients with quality representation in various types of commercial and business matters. If you have questions about a trademark law issue, contact one of our Philadelphia trademark lawyers today at 215-574-0600 or contact us online.

Workers’ Compensation and Illegal Immigrants

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Under Pennsylvania law, illegal immigrants can apply for Workers’ Compensation if they are injured while working. See, Reinforced Earth Co. v. W.C.A.B. (Astudillo), 810 A.2d 99 (Pa. 2002). In Reinforced Earth, the plaintiff was a maintenance helper and assisted with cutting and welding iron and climbing scaffolds and ladders while lifting steel beams. Id. at 101.  While working, he was struck in the head, neck and back with a steel beam and diagnosed with a concussion, mild head injury and back strain and sprain. Id. Even though he was an illegal immigrant, the court held that he was allowed to receive Workers’ Compensation because the purpose of the law is to protect those who need protection, including those individuals here illegally. Id. at 105. Additionally, the court found that not allowing the plaintiff to receive Workers’ Compensation would reward companies for not inquiring as to a worker’s legal status before hiring. Id. at n. 8.

However, there is a limit to the compensation an injured illegal immigrant worker is allowed to receive. Mora v. W.C.A.B. (DDP Contracting Co., Inc, and Penn National Insurance), 845 A.2d 950, 952 (Commw. Pa. 2004). In Mora, the court held that when an illegal immigrant is able to go back to any type of work, his or her workers’ compensation can be suspended. Id. Mora went from working full-time and earning $800.00 a week to working only part-time and earning only $140.00 a week. Id. The court reasoned that there was a large price gap in the paychecks because the plaintiff was illegal, not because of injuries on the job, and therefore stopped workers’ compensation. Id.

At Sidkoff, Pincus & Green P.C., our Pennsylvania and New Jersey attorneys handle many types of legal matters, including immigrant discrimination. To arrange a consultation with a knowledgeable employment lawyer in Philadelphia, call 215-574-0600 or contact us online.

Pennsylvania Court Upholds PHRC Ruling in Favor of Employee Who Alleged Religious Discrimination and Retaliation After Complaining About Bible Quotes on Paychecks

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In Brown Transport Corp. v. Com., Pennsylvania Human Relations Com’n, Brown petitioned the Court of Common Pleas to review an order of the Pennsylvania Human Relations Commission (“PHRC”) that granted relief to a former employee, Stephen Soffer, who asserted claims of religious discrimination, retaliation, harassment, and failure to accommodate. 578 A.2d 555, 559 (Pa. Comm. 1990). This religious discrimination included bible verses on Soffer’s paycheck and religious articles printed in the company newspaper. Soffer complained about the checks and the articles to management, but they refused to either remove the bible verse stamps on the checks or remove the religious content from the company newspaper.. At one point a manager at Brown told the Soffer that he should be grateful to be getting a paycheck at all. Id. at 556. After complaining multiple times Soffer was fired despite stellar performance reviews.  Id. at 559. The PHRC ultimately found in favor of Soffer, noting his impeccable record two months prior to his termination.  Id. at 561.

Brown petitioned the Court to overrule the PHRC based on the following: 1) the PHRC should not have permitted Soffer to add a claim under Section 5(d) of the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(d), for retaliatory discharge; 2) that the PHRC’s findings of fact concerning Soffer’s allegations were unsupported by substantial evidence; 3) the PHRC erred in its application of law to the facts by concluding that Brown committed acts of retaliation and harassment against Soffer; and 4) Soffer was precluded by limitations in  in Section 959(f) of the PHRA, 43 P.S. § 959(f), from recovering any sums in the nature of either punitive or compensatory damages.

The Court ruled that Section 12(a) of the PHRA provides that provisions under the PHRA may be construed liberally, and the PHRC properly construed Soffer’s complaint to sufficiently allege discharge. Second, the Court found that Soffer provided sufficient evidence to support his allegations, and upheld the PHRC’s decision that Brown’s witnesses were non-credible as to why Soffer was fired. Third, the Court ruled that the PHRC’s findings were consistent with the evidence such that it did not err in its application of the law to the facts when ruling that Brown committed acts of retaliation and harassment against Soffer. Lastly, the Court relied on Consumer Motor Mart v. Pennsylvania Human Relations Commission, 529 A.2d 571 (Pa. Comm. 1987) to support the PHRC’s award of punitive and compensatory damages.

Philadelphia Employment Lawyers of Sidkoff, Pincus & Green P.C. Represent Clients in Employment Discrimination Matters

At Sidkoff, Pincus & Green P.C., our Pennsylvania and New Jersey attorneys are knowledgeable in all matters related to employment discrimination. To schedule a consultation with a Philadelphia employment lawyer, call 215-574-0600 today or contact us online.

Philadelphia Sues Wells Fargo Over Predatory Lending Practices

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On May 15, 2017, Philadelphia sued Wells Fargo for alleged predatory lending in violation of the Fair Housing Act of 1968. The lawsuit comes two weeks after the Supreme Court ruled that cities can sue banks that possibly could have targeted minorities with bad loans. The city’s lawsuit, filed in the U.S. district Court in Philadelphia, says Wells Fargo purposefully pitched high-risk loans to black and Latino borrowers, though they were eligible to apply for better loans. The lawsuit says Wells Fargo was aware of this imbalance, and even encouraged employees to take advantage of it.

The claims are similar to those made by the city of Miami, which the U.S. Supreme Court ruled earlier this month that Miami could proceed with its lawsuits against banks for targeting minority customers. Like Philadelphia’s lawsuits, Miami alleged that banks unfairly targeted minority borrowers with bad loans. Then after the financial crisis, these customers, and even entire communities, saw unequal rates of foreclosure. Miami claimed that the discriminatory lending by Bank of America and Wells Fargo, caused undue financial harm on the city, increased segregation, and lowered property values. The Supreme Court’s decision was important because this is the first time a city representing entire communities has sued under the FHA. Miami’s case has returned to a federal appeals court in Atlanta, which will decide how much proof Miami needs to show in order to demonstrate the banks knowingly discriminated against communities. That decision, too will likely set precedent for other cities, as Los Angeles, Oakland, Baltimore, and Memphis have all filed similar lawsuits.

In its lawsuit, Philadelphia said an analysis found that more than 23 percent of loans to minority customers were high-risk or high-cost, while only 7.6 percent of white customers were given similar terms. Philadelphia has asked Wells Fargo to end these practices, and is seeking monetary damages from lost taxes, lowered property values, and compensation for increased segregation.

Philadelphia Commercial Lawyers of Sidkoff, Pincus & Green P.C. Defend Against Predatory Lending Practices

Attorneys at Sidkoff, Pincus & Green P.C. represent those affected by predatory lending practices. To schedule a consultation with an experienced Philadelphia commercial lawyer, call 215-574-0600 today or contact us online. From our Center City Philadelphia office, we represent clients throughout Pennsylvania and South Jersey.

Trademarks and the First Amendment

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Recently, the United States Supreme Court ruled that trademarks are protected by the Free Speech Clause of the First Amendment. Many wonder what this means for holders of trademarks, or prospective trademark applicants. The United States government cannot reject a proposed trademark on grounds that the viewpoint it expresses is distasteful or offensive. According to the Supreme Court, this would amount to government censorship of free speech. No viewpoint can be discriminated against, according to the Court.

The Federal Government enacted the Lanham Act to encourage commerce and create a uniform standard. The relevant provision is the “disparagement clause,” which has heretofore barred trademarks that defame individuals, institutions, or beliefs.

The recent precedential case is known as Matal v. Tam. The facts underlying the case are as follows. The lead singer of a band known as “The Slants,” sought to trademark the band’s name, but his application was rejected by the United States Patent and Trademark Office (USPTO). The Office determined that the band’s name was derogatory toward Asians and offensive. As such, the USPTO determined that the band was not entitled to receive the government sanctioned benefit of trademark protection.  The Supreme Court disagreed and held that trademark registration cannot be denied by discriminating based on viewpoints.  While the government may discriminate based on viewpoint when it comes to its own speech, trademarks are private speech and the public expression of ideas may not be prohibited because the ideas themselves are offensive to some of their hearers.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green Represent Clients in Intellectual Property Litigation

At Sidkoff, Pincus & Green, our legal team provides services to businesses and individuals in trademark disputes and other intellectual property matters. To schedule a confidential consultation, call us today at 215-574-0600. With offices conveniently located in Philadelphia, our Philadelphia trademark lawyers represent clients throughout Pennsylvania and New Jersey.

Tortious Interference as applied by Pennsylvania Courts

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“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) 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.” Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175 (Pa. 1978).

This duty of non-interference applies whether or not there is a contract with a third party See Restatement (Second) of Torts, § 766, Comment (b) (1979)( “there is a general duty not to interfere intentionally with another’s reasonable business expectancies of trade with third persons, whether or not they are secured by contract…). This duty also applies to contracts that are terminable at will. Restatement (Second) of Torts, § 766, Comment (g) (1979).  “Under Pennsylvania law, to succeed on a claim for tortious interference with existing or prospective business relationships, a party must show:

(1) The existence of a contractual or prospective contractual or economic relationship between the plaintiff and a third party

(2) Purposeful action by the defendant, specifically intended to harm an existing relationship or intended to prevent a prospective relation from occurring

(3) The absence of privilege or justification on the part of the defendant

(4) Legal damage to the plaintiff as a result of the defendant’s conduct and

(5) For prospective contracts, a reasonable likelihood that the relationship would have occurred but for the defendant’s interference.”

At Sidkoff, Pincus & Green P.C., our Pennsylvania and New Jersey attorneys handle many types of legal matters, including those involving tortious interference. To discuss your case with a Philadelphia business lawyer, call 215-574-0600 today or contact us online.

Supreme Court Of Pennsylvania Rules That Summary Judgement Is Not Warranted Where Plaintiff Did Not Destroy Evidence As A Result Of Negligence Or Bad Faith

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In Schroeder v. Commonwealth, the Supreme Court of Pennsylvania determined whether a product liability defendant and a non-product liability defendant are entitled to summary judgment when the plaintiff failed to preserve a defectively-designed product. 710 A.2d 23, 24 (Pa. 1998). In Schroeder, plaintiff represented the state of the decedent, who died when his truck caught fire after the decedent lost control of the truck.   Following the accident, the decedent’s insurer sold the truck’s remains to a scrapper, who took the remains to a salvage yard after plaintiff signed title over to the insurer.  The plaintiff requested the salvage yard not sell or destroy the truck until examination. However, the salvage yard sold many of the truck’s parts.  The plaintiff filed suit against the truck’s manufacturer and seller alleging it was defective. Plaintiff also sued the DOT alleging it negligently maintained the highway, which caused decedent to lose control of his truck. The defendants moved for, and the trial court granted, summary judgment on the ground the truck had been spoiled. The Commonwealth Court affirmed, finding the plaintiff was vested with absolute responsibility to preserve evidence and failed to do so, warranting summary judgment.

Applying previously stated methods to the case, the Pennsylvania Supreme Court reversed the Commonwealth Court, determining that the product liability defendants, the seller and manufacturer, were not entitled to summary judgment. As to fault, the first factor for spoliation, the court found that no evidence in the summary judgment motions supported the plaintiff’s transfer to the salvage yard was negligent or in bad faith, particularly given the plaintiff’s requests not to sell or destroy the truck. Additionally, the court found the second and third factors also did not necessitate summary judgment in the case.  The court determined that because the plaintiff claimed product liability based on a design defect common to all similar trucks, the prejudice to the defendants/appellees was not great as they could inspect other trucks for the alleged defect.  Accordingly, the court noted a lesser sanction, like a jury instruction on the spoliation, was warranted.

Additionally, the court determined that DOT also was not entitled to summary judgment based on spoliation.  The court reiterated that summary judgment was not warranted due to plaintiff’s fault.  Further, examining the second factor, the court noted DOT suffered less prejudice from spoliation of evidence than the products liability defendants, as claims against DOT related to the condition of the roads rather than the truck.  Finally, in consideration of the third factor, the court found that a lessor sanction such as a jury instruction on the spoliation would be proper.

Philadelphia Business Lawyers of Sidkoff, Pincus & Green P.C. Advise Clients Seeking Summary Judgement

At Sidkoff, Pincus & Green P.C., our Pennsylvania and South Jersey business lawyers offer experienced guidance for a variety of legal matters. We will work tirelessly to achieve the best possible outcome for you case. To schedule a consultation in our Philadelphia office, call 215-574-0600 today or contact us online.

Definition and Determination of Spoliation of Evidence under PA Law

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Definition and Punishments

‘Spoliation of evidence’ is the non-preservation or significant alteration of evidence for pending or future litigation.  When a party to a suit has been charged with spoliating evidence in that suit (sometimes called ‘first-party spoliation’) . . . trial courts [may] exercise their discretion to impose a range of sanction against the spoliator.” Additionally, sanctions for spoliation arise from “the common sense observation that a party who has noticed that evidence is relatable to litigation and who proceeds to destroy said evidence, is more likely to have been threatened by that evidence, than a party in the same position who does not destroy the evidence.

In other words, Pennsylvania courts recognize that a potential remedy for spoliation is allowing the jury to draw an “adverse inference” against the spoliating party.

In federal court, “spoliation occurs where: the evidence was in the party’s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, he duty to preserve the evidence was reasonably foreseeable to the party.” As to sanctions in federal county, the District Court for the Eastern District of Pennsylvania has noted that spoliation ‘may give rise to sanctions which include: dismissal of a claim or granting a judgment in favor of a prejudiced part; suppression of evidence; an averse inference, referred to as the spoliation inference; fines; and attorney’s fees and costs.”

The Test for Determining Spoliation and its Severity

To make such a determination, the court must balance three factors:  “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. In evaluating the first prong, the fault of the party altering or destroying evidence, courts must consider both “the extent of the offending party’s duty or responsibility to preserve the relevant evidence, and the presence of absence of bad faith.”

Philadelphia Local Counsel at Sidkoff, Pincus & Green P.C. Advocate for Those Affected by Spoliation of Evidence

At Sidkoff, Pincus & Green P.C., we handle many types of legal matters, including spoliation of evidence. Call 215-574-0600 today or contact us online for local legal counsel in Pennsylvania and New Jersey.

Trump’s Labor Department Wants Salary Level to Determine Overtime Eligibility

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Recently, the Labor Department filed a brief in federal court challenging whether the Obama administration had the right to double the threshold for the maximum pay a worker can receive and still qualify for overtime. Employees who earn less than the threshold maximum salary are eligible for time-and-a-half. The Obama administration fought to double the maximum salary threshold from $24,000 to around $47,000. This would have meant that those earning less than $47,000 would be eligible for time-and-a-half if they work more than 40 hours a week. This would have resulted in four million more Americans being eligible for overtime pay.

However, last year, a federal court blocked the Obama administration’s rule. Now Trump’s Labor Department has said that it wants salary levels to count in deciding who is eligible for overtime, but it continues to hold off on the maximum pay workers can earn and still qualify for overtime. The Department expressly asked the court not to address the specific salary level set by the 2016 final rule. The Trump administration only requested a ruling on whether the department has statutory authority to set a salary level at all.

Some critics have argued that anything lower than the $47,000 suggested by Obama would adversely affect minority workers. When the Obama administration issued the rule in May of 2016, the Labor Department said that it would go a long way toward ensuring that every worker is compensated for their hard work. Supporters argue that many employees do not even realize that they are eligible for overtime pay.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Advocate for Victims of Unpaid Overtime 

Certain employees who work more than 40 hours a week are eligible for time-and-a-half. If you have only been paid regular wages for overtime hours, you may be entitled to additional compensation. To discuss your case with a skilled Philadelphia employment lawyer at Sidkoff, Pincus & Green, call us today at 215-574-0600 or contact us online.