Category: Uncategorized

Agreements to Arbitrate

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The Third Circuit recently decided a case in which the District Court had vacated an arbitration award after finding that the parties to the contract at issue had not agreed to arbitration. In Aliments Krispy Kernels, Inc. v. Nichols Farms, the plaintiff, Aliments had attempted to confirm an arbitration award related to the sale of pistachios. The contract dispute centered on a brokered deal between the buyer, Aliments, and the seller, Nichols.

Upon denial of Aliments’ credit application, Nichols requested payment before delivering the pistachios, instead of thirty days from delivery. Aliments claimed that advance payment is inconsistent with the parties’ previous practices and with industry standards and eventually bought pistachios from another vendor at a higher price. Aliments then initiated arbitration proceedings to recover the difference in cost and was awarded $222,100.

When Nichols refused to pay, Aliments brought the case before the District Court seeking enforcement of the arbitration award. The court found there was a lack of evidence as to an agreement or sales confirmation between the parties and agreed with Nichols that it did not agree to arbitrate, accordingly granting Nichols’ petition to vacate the award. Aliments appealed to the Third Circuit, which examined the legal standard applied by the District Court and whether the parties entered into an agreement to arbitrate as a matter of law.

The Third Circuit stated that its previous applications of the standard requiring an express and unequivocal agreement to arbitrate were confusing and outdated. Instead, the Third Circuit instructed that when determining if a party is compelled to submit to arbitration, the courts should decide whether there was a valid agreement between the parties to arbitrate by applying ordinary state law principles governing the formation of contracts.

The Third Circuit concluded that the District Court properly used the express and unequivocal standard in deciding whether to confirm the arbitration award only to the extent that there were no genuine issues of material fact regarding the formation of the contract. However, it disagreed with the lower court’s finding that there were no genuine issues of material fact; specifically, that there was no evidence that an agreement or sales confirmation was entered and that there was no evidence that Nichols intended to arbitrate.

The Third Circuit stated that there are remaining issues of fact such as – among several other issues – whether a binding contract was created before Nichols received Aliments’ credit application. Therefore, the case was vacated and remanded for further proceedings due to the Court’s finding that multiple issues of material fact are in existence.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Parties in Breach of Contract Disputes

At Sidkoff, Pincus & Green, our Philadelphia business lawyers handle even the most complicated breach of contract disputes. Call us at 215-574-0600 or contact us online today to arrange a confidential consultation in our Philadelphia offices.

Philadelphia Wage Dispute Lawyer: PNC Settles Class-Action Lawsuit

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PNC Bank recently agreed to pay $16 million to settle a federal class-action lawsuit filed by employees who claimed that the company discouraged them from reporting overtime and failed to pay them fairly for acquired overtime hours. The case involved 3,431 employees and mortgage loan officers employed by PNC since 2011.

Four loan officers originally filed the lawsuit in August 2015, citing a breach of the Fair Labor Standards Act (FLSA). The FLSA in part establishes overtime pay eligibility for full and part-time workers in the private sector and in local, state, and federal governments. The FLSA states that eligible employees are entitled to one and a half times the employee’s rate for each hour worked in excess of 40 per week.

One of the most common overtime violations is the incorrect classification of a worker as “exempt” or non-exempt from overtime compensation. Under the FLSA, exempt employees may include those who earn more than $23,600 per year and perform executive duties in the course of the job. Exempt employees might include those who: supervise two or more employees; perform primarily as managers; or those involved in decisions regarding other employees such as hiring, firing, and promotion. A skilled wage dispute lawyer may help you determine your eligibility for overtime pay and if you have a valid overtime dispute with your employer.

Philadelphia Wage Dispute Lawyers at Sidkoff, Pincus & Green Advise Clients in Unpaid Overtime Disputes

You may not be aware that unpaid overtime can be collected up to two years after the date that it was earned. In some cases, you may have an additional year to pursue unpaid overtime. If you are unsure about your eligibility or believe you have a valid overtime claim, contact a Philadelphia wage dispute lawyer at Sidkoff, Pincus & Green at our Center City Philadelphia offices at 215-574-0600 or contact us online.

Philadelphia FINRA Lawyers: Variable Annuity Fraud

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A Financial Industry Regulatory Authority (FINRA) panel has awarded damages to a woman over claims that her broker misled her about her investment. The investment was an ING Landmark variable annuity for which the petitioner alleged fraud, breach of contract, negligent supervision and breach of fiduciary duty, as well as violation of the Colorado Securities Act by her broker-dealer.. The respondent, broker-dealer, based in Oklahoma City, has been ordered to pay the woman over $1 million in damages.

The petitioner alleged she had been promised seven percent compounded annual returns on her investment. The case was unusual because of the clear paper trail and a written guarantee from the broker. A Salt Lake City arbitration panel awarded the petitioner $537,000 in compensatory damages, an amount equal to the difference of what she had been promised and what she received. The FINRA panel also awarded $537,000 in punitive damages. The panel attributed the punitive award to the “pattern of harming a group of people,” demonstrated by the broker-dealer firm which had as many as eight other clients with the same problem.

Annuity Complaints on the Rise

According to FINRA, client claims involving annuities rose 31 percent last year. They rank fifth among the securities involved in claims against FINRA member firms. This surge in client claims is getting the attention of the federal government, which has considered placing conditions on the sale of annuities, citing conflicts of interest and high fees. The advocacy group Consumer Action says that seniors are particularly at risk for fraud and make up 30 percent of victims.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green P.C. Advocate for Victims of Fraud and other Wrongful Acts

If you have suffered a financial loss due to fraudulent financial advice, you may be entitled to compensation. At Sidkoff, Pincus & Green P.C. our Philadelphia FINRA lawyers have extensive experience handling many types of legal disputes, including FINRA arbitration. Call us at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Trade Secrets Lawsuit

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An architecture and construction company, Tesla Wall Systems LLC, has been awarded $14.5 million in damages in a claim against its former president. Among other things, the claim alleged breach of contract based on the trade secret/restrictive covenant clause in the employment contract. The contract contained post-employment restrictions barring the ex-president from interference with company business relationships for six months, and from soliciting employees for nine months.

Tesla Wall alleged that the breach of confidentiality began as early as September 2012 when the defendant bought three laptops. The company maintained that he did not ask to be reimbursed for his purchase because he was using them to steal trade secrets. In the complaint, Tesla employees said that after his departure, the defendant continued to pursue Tesla projects and customers with his new company. The list of proprietary information that he allegedly took with him included everything from software and technology, to technical data and research, engineering designs, internal bids and proposals, as well as customer lists and internal pricing information.

Many claims involving restrictive covenants never make it to trial as the parties often opt for a settlement.  However in this case, the employer decided to pursue the claim to its conclusion. After sitting through more than ten days of trial, a federal jury in the Southern District of New York returned a verdict in favor of Tesla Wall LLC.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Breach of Contract Matters, Restrictive Covenant Actions and Trade Secret Claims

The Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. have experience in contract law, restrictive covenants and trade secrets. Please call us at 215-574-0600 or contact us online. Our offices are in Philadelphia and we serve clients nationwide.

Philadelphia Business Lawyers: Court Rules on Copyright

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Recently, the U.S. Supreme Court issued a watershed decision in Star Athletica v. Varsity Brands, holding that the decorative features on cheerleading uniforms are protected by federal copyright law. The issue before the court was what was the appropriate test to determine whether a feature of a useful article, such as an article of clothing, is protected under the 1976 Copyright Act’s Section 101. The Court set out to resolve a widespread disagreement as to what testing standard is most appropriate.

Justice Clarence Thomas authored the opinion. He wrote that an artistic feature of a uniform’s design can be copyrighted if it can be perceived as a two or three-dimensional work of art that stands separate from the uniform itself. The analysis applies equally to all “useful articles.” In addition, the feature must qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the uniform.

Varsity Brands manufactures cheerleading uniforms and athletic apparel. Varsity has more than 200 copyright registrations for two-dimensional designs consisting of various patterns, chevrons, and shapes. Designers create concepts that consist of original combinations, positionings, and arrangements of elements and do not consider functionality or the ease of actually producing uniforms. Varsity sued Star Athletica, who also markets cheerleading uniforms, after they allegedly copied two-dimensional art designs that Varsity had copyrighted. The Court held that the uniforms at issue met the requirements set forth by the newly devised test.

Justice Stephen G. Breyer dissented, finding that Star Athletica’s designs looked like generic pictures of cheerleader uniforms. He compared the situation to a pair of old shoes in a Van Gogh painting—stating that it would not qualify as a shoe design copyright, though the painting itself would be copyrightable.

Justice Ruth Bader Ginsburg concurred with the majority’s judgment, but not its opinion. She said that designs are not designs of useful articles, but rather are themselves copyrightable graphic works reproduced on useful articles. She found that the designs were standalone works of sculptural art that were covered by Section 101 of the 1976 Copyright Act.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Handle All Types of Trademark Litigation

If you are seeking representation in any type of business, copyright, or trademark matter, the Philadelphia trademark litigation lawyers at Sidkoff, Pincus & Green P.C. are available to answer your questions. To schedule a consultation with us, call us at 215-574-0600 or contact us online today.

Philadelphia Employment Lawyers: Janitor Wins Age Discrimination Case

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A janitor in Massachusetts has won his age discrimination case against his former employer, Massasoit Industrial Corporation. The 74-year-old man was fired before learning his job had been replaced by a 68-year-old woman. The case had previously been decided in favor of the plaintiff by the Massachusetts Commission on Discrimination in 2007. Massasoit later appealed the ruling in Superior Court. The Superior Court upheld the Commission’s decision that the termination constituted a violation of state laws against age and disability discrimination.

This case of wrongful termination occurred after the plaintiff had worked for Massasoit for 21 years. He started his job in 1986 at the age of 54 as a part time custodian in the outside maintenance department. From 1997, he was performing general custodial work at the Registry of Motor Vehicles (RMV). The worker was a very dependable worker who had never missed a day of work for illness or called in sick to work. His personnel record with Massasoit was spotless.

One day in March of 2007, the plaintiff felt unwell and had to leave work. After being diagnosed with pneumonia, he spent three days in the hospital. He asked his daughter-in-law to notify a co-worker that he would not be coming to work. The co-worker in turn said he would tell their supervisor. Shortly after being released from the hospital, the plaintiff again felt unwell and was readmitted for a heart attack. Again, the same co-worker assured him that he would notify their supervisor of the return to the hospital. This co-worker also visited the plaintiff in the hospital and assured him that the supervisor had been notified.

In May 2007, the plaintiff returned to work with a doctor’s note stating that he was cleared to return to work without any health restrictions, but he was informed by the manager that his position had been terminated. When he asked for a reason, his employer stated that he was fired because he was a so called “no call/no show.” All attempts to retain his employment were unsuccessful. His replacement, a 68-year old woman, was hired June 1, 2007.

The plaintiff filed a complaint with the Massachusetts Commission on Discrimination alleging age and health discrimination, and was successful. He was awarded damages of $55,650 in wage compensation and $35,000 for emotional damages. His attorney’s fees were also covered.

The appeals court decision described the evidence as “more than sufficient” that Massasoit Industrial Corporation regarded the plaintiff as disabled when they fired him.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Those Who Have Been Wrongfully Terminated

Discrimination is against the law and if you have been wrongfully terminated, the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. will fight to make sure you receive the compensation you are owed. Contact us today to arrange a confidential consultation at our Philadelphia offices to discuss your case. Call us at 215-574-0600 or contact us online.

Philadelphia Whistleblower Lawyers: False Claims Act Violation

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A former employee of MedStar Health Inc. has filed a whistleblower lawsuit against her employer under the False Claims Act. Court documents allege the company engaged in fraudulent activity together with a vendor, Accretive Health Inc., to boost Medicare inpatient claims at hospitals.

Claims of Medicare Fraud

Medicare pays more to hospitals for patients who are admitted for inpatient care than it does for patients who are on observation status. The plaintiff claims that while working at MedStar Washington Hospital’s emergency department, she helped to submit false claims to Medicaid, Medicare and Tricare. She alleges that Accretive took patients who were on observation status and created written recommendations for them that justified admitting them as inpatients. The Accretive personnel making the recommendations did not have the qualifications or even the information required to do so. The suit alleges that MedStar staff were then pressured into accepting the recommendations.

The lawsuit alleges that Accretive went as far as to claim to hospital administrators at different hospitals around the country that they could provide a revenue lift from Medicare. The suit describes a system designed by Accretive to exploit the administrators’ need for revenue and diminish the authority of the hospitals’ own doctors by overriding them with the fraudulent recommendations.

The False Claims Act

The False Claims Act is a federal law that holds people and companies liable for defrauding the government. It is the government’s primary tool for litigation against fraud. The Act’s qui tam provision enables private citizens to bring suit on behalf of the government. This is commonly known as whistleblowing. Whistleblowers filing under the False Claims Act receive a portion of the money recovered – usually between 15 to 25 percent. Whistleblowers are also entitled to protection against retaliation because they exposed fraud.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Represent Whistleblowers in False Claims Act Cases

Qui tam cases are complex and require thorough knowledge of whistleblower law. The Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. can review your case if you believe that you have been retaliated against for whistleblowing. Call 215-574-0600 to schedule an appointment in our Philadelphia offices or contact us online. We serve clients throughout Pennsylvania and New Jersey.

Philadelphia Employment Lawyers: Oxford Comma Overtime Dispute

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A group of truck drivers recently filed a class action lawsuit alleging that they were not paid overtime as required by state law. The trucking company countered that they were exempt from coverage under the law. The entire case hinged on the controversial use (or lack thereof) of the Oxford comma. The United States Court of Appeals for the First Circuit ruled in favor of the truck drivers, awarding them an estimated $10 million.

By way of background, the Oxford comma, also called the serial comma, is used to separate the last two items in a list. For example, people in favor of the Oxford comma would write “apples, oranges, and pears.” People who dislike the Oxford comma would write “apples, oranges and pears.”

In Maine, where this matter occurred, workers must be paid time and a half of their normal rate of pay for each hour worked after 40 hours. However, there are exemptions. The Maine law says that overtime rules do not apply to those who work in: “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipping or distribution of (various food items).”

The three dairy delivery truck drivers who filed the lawsuit distribute perishable foods, but they do not pack the goods. The ambiguity with the language of the law is whether the word “packing” modifies both “shipping” and “distribution,” or just “shipping.” If there were a comma after the word shipping, it would have been clear that the delivery drivers were entitled to the overtime pay.

The court of appeals ruled that the absence of a comma produced enough uncertainty to rule in favor of the truck drivers, and reversed the ruling of the court below. The law followed the guidelines set forth in the Maine Legislative Drafting Manual, which explicitly instructs lawmakers not to use the Oxford comma, but does note that legislators should use caution if an item in the series is modified.

The delivery drivers earned between $46,800 and $52,000 a year without overtime. They worked an average of 12 extra hours per week. Although only three drivers filed the class-action lawsuit, 75 drivers will split the award.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Clients in Wage and Overtime Disputes

The Philadelphia overtime dispute lawyers at Sidkoff, Pincus & Green represent individuals in wage and hour lawsuits and those who believe they are owed overtime pay. To learn more about how we can help you, call us today at 215-574-0600 or contact us online to schedule a confidential consultation in our Philadelphia offices.

Philadelphia Whistleblower Lawyers: Whistleblower in California Receives Substantial Award

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A whistleblower at a California based life science company has been awarded nearly $8 million by the jurors hearing his case. The claimant served as general counsel at Bio-Rad when he discovered possible bribery being committed in China by senior management of the company. He duly reported the potential violations of the Federal Corrupt Practices Act (FCPA) internally to an audit committee that investigated them and concluded there had been no wrongdoing.

The investigation lasted four months after the internal memo was originally filed by the informant in February of 2013. In June that same year, the plaintiff was fired after 25 years of service at Bio-Rad. The company claimed his termination was due to his erratic work and loud outbursts, but his 2012 performance review was largely positive. No documentation of the alleged behavioral problems existed aside from a review in April 2013. The trial hinged on the plaintiff’s team using metadata to show that the review had actually been created in July, after the firing.  Attorneys for the plaintiff called the review “a despicable lie” and said it had been fabricated to justify his wrongful termination.

The jury deliberated less than three hours and unanimously found that Bio-Rad had fired the counselor in retaliation for his whistleblowing actions. He was awarded $2.9 million in back pay and stock compensation, along with $5 million in punitive damages. Because the Dodd-Frank Act doubles back pay for whistleblower retaliation, the award total will increase to nearly $11 million.

In November 2014, Bio-Rad was forced to pay $55 million in fines to settle violations of the FCPA. The Department of Justice and Securities and Exchange Commission brought criminal charges and civil claims against the company alleging improper payments were made to foreign officials in Vietnam, Thailand, and Russia. In testimony, the whistleblower said he had found documents detailing the distribution of free products to clients in China. He filed his qui tam lawsuit against Bio-Rad and its CEO charging the disclosure of his findings should have been protected under the whistleblower provision of the Sarbanes-Oxley Act of 2002. The jury agreed, awarding the man one of the highest amounts ever granted under the Act.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Defend Whistleblowers

If you suspect wrongdoing at your workplace it takes tremendous courage to step forward and blow the whistle on such conduct. There are laws to protect whistleblowers and prevent retaliation against them. The Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green are here to discuss your situation with you and provide guidance. Call 215-574-0600 or contact us online to schedule an appointment at our Philadelphia offices. We represent clients throughout Pennsylvania and South Jersey.

 

 

 

Philadelphia FINRA Lawyers: UBS Seeks to Overturn FINRA Ruling

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Swiss financial wirehouse UBS is seeking to vacate a Financial Industry Regulatory Authority (FINRA) ruling and $18.5 million award on the basis that two out of three arbitrators on the case were not impartial. UBS claims that one of the clients involved in the case went against their financial recommendations, a decision leading to substantial losses. However, the crux of USB’s case to overturn the award is their assertion that arbitrators failed to disclose concerning personal and professional financial details prior to their involvement in the case.

The case was initially decided in favor of the plaintiffs, a married couple, who won damages based on UBS sale of closed-end funds of Puerto Rican bonds, claiming unsuitability and breach of fiduciary duty. The claimants also accuse UBS of violating Puerto Rico’s own financial statutes. The couple initiated their arbitration a year after the Puerto Rican bond market collapsed. They allege that UBS misled clients about the potential vulnerability of their investments, while artificially inflating the local demand for bonds.

A FINRA three-member arbitration panel found that UBS failed in their obligation to these clients. FINRA is a not-for-profit organization dedicated to ensuring the integrity of broker-dealer industry and protecting investors. FINRA is not a part of the government, but is authorized by Congress. FINRA supervises more than 635,000 brokers and 3,900 securities firms.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green Resolve the Toughest Business Law Cases

Philadelphia FINRA lawyers at Sidkoff, Pincus & Green bring experience and knowledge to business law cases. If you are seeking representation in a FINRA matter, call our Philadelphia offices today at 215-574-0600 or contact us online to discuss your situation.