Category: Business and Corporations

Anadarko Petroleum Corp. v. Commonwealth, 2019 Pa. Cmwlth. LEXIS 236 (March 15, 2019) Ceisler, J.-In these combined interlocutory appeals by permission, we address two issues of first impression pertaining to Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (Law or UTPCPL). The first is whether Appellee Commonwealth of Pennsylvania, Office of Attorney General (Attorney General), can bring a cause of action against lessees pursuant to the UTPCPL, due to allegedly wrongful conduct perpetrated by the lessees in the context of leasing subsurface mineral rights from private landowners. The second issue is whether the Attorney General can bring a cause of action against those lessees, pursuant to the UTPCPL, for alleged violations of antitrust law. The Court of Common Pleas of Bradford County (Trial Court) answered both questions in the affirmative; however, after thorough consideration, we affirm in part and reverse in part. We hold that the Attorney General was permitted to file a UTPCPL-based lawsuit against Appellants, but can only pursue antitrust claims through the UTPCPL where the so-called “antitrust” conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices,” as those terms have been either…

In re McGraw-Hill Global Educ. Holdings, LLC, 2018 U.S. App. LEXIS 32931 (3d Cir. November 21, 2018) Smith, C.J.  These consolidated mandamus petitions require us to decide whether two professional photographers bringing separate copyright infringement actions are bound by a forum selection clause in contracts they did not sign. We conclude that the photographers are not bound because they are not intended beneficiaries of the agreements, nor are they closely related parties. Our conclusion means that one District Court got it right, and the other got it wrong. But mandamus is an extraordinary remedy. Because the erring District Court’s mistakes were not clear or indisputable, we decline to issue the writ. A non-signatory may be bound by a contractual forum selection clause if he is an intended third-party beneficiary to the contract. DuPont, 269 F.3d at 195 (citing Coastal Steel Corp., 709 F.2d at 202–04). The New York Court of Appeals has adopted the Restatement (Second) of Contracts for determining third-party beneficiary status. Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 124 (2d Cir. 2005) (citing Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 485 N.E.2d 208,…

GAS DRILLING-FRACKING-INTERSTATE COMPACT- Wayne Land and Mineral Group v. Delaware River Basin Commission, No. 17-1800 (3d Cir. July 3, 2018) Jordan, C.J.  Wayne Land and Mineral Group, LLC, a company that wants to obtain natural gas by fracking reserves in Pennsylvania,1 appeals from the dismissal of its complaint for failure to state a claim. Wayne sought a ruling in the District Court under the Declaratory Judgment Act that an interstate compact does not give the Delaware River Basin Commission authority to review Wayne’s proposed fracking activities. The Commission argued in response that Wayne’s claim was properly dismissed as unripe, that Wayne lacks standing, that there has been no final agency action, and that Wayne has not exhausted available administrative remedies. The District Court rejected those arguments but nevertheless denied Wayne’s request for relief and dismissed the case under Federal Rule of Civil Procedure 12(b)(6), after determining that Wayne’s proposed activities constituted a “project” subject to the Commission’s oversight, according to the unambiguous terms of the interstate compact. Because we conclude that the meaning of the word “project” as used in the compact is ambiguous, we will vacate the order of…

Case Involving Vicarious Liability, Piercing the Corporate Veil and Alter Ego Sanctions Clientron v. Devon IT, Inc., No. 16-3432, E.D. Pa. No. 2-13-cv-05634 (3d Cir. July 5, 2018) Greenaway, Jr., C.J.  In this unusual case, Appellant Clientron Corp. is actually the prevailing party below and holds a judgment against Appellee Devon IT, Inc. worth over $7 million. Clientron claims, however, that it is unable to recover because Devon IT is insolvent. Before the District Court and now also on appeal, Clientron has argued that Devon IT’s corporate veil should be pierced, and that the two shareholders who own Devon IT as tenants by the entirety, Appellees John Bennett and Nance DiRocco, should be held personally liable for the entire judgment. Although the District Court declined to disregard Devon IT’s corporate form on the merits, it held Bennett—but not DiRocco—personally liable for a portion of the judgment as a sanction for egregious discovery misconduct. According to Clientron, this decision to sanction only Bennett was insufficient because he, like Devon IT, is judgment-proof. Clientron contends that it can recover only if DiRocco is held personally liable for the judgment as well. As…

Larry Pitt & Associates v. Lundy Law LLP, No. 2:13-cv-02398-CMR (February 15, 2018) Rufe, J. In Pennsylvania, unlike in many other jurisdictions, an attorney or a law firm is permitted to refer a case to another attorney or law firm and earn a portion of the clients’ fees without performing any work on the case, so long as the arrangement is disclosed to the client and the fee is not excessive. However, a law firm may not actively advertise in its own name for certain categories of cases for the purpose of referring those cases to other law firms. This case requires the Court to determine whether, and under what circumstances, a law firm can obtain relief against such advertising practices by its competitor. For years, Lundy Law, a personal injury law firm with offices in Philadelphia and surrounding counties in Pennsylvania, New Jersey, and Delaware, has advertised on television, public transit, and other media, using the slogan “Remember this Name” and its mnemonic hotline number 1-800-LUNDYLAW. Since at least 2008, Lundy Law’s advertisements have solicited workers’ compensation and social security disability cases, among other categories of cases. P itt…

Claim for violation of Unfair Trade Practices and Consumer Protection Law thrown out by trial court.  The Third Circuit affirmed.  In 1999, homeowners obtained a home loan from Parkway Mortgage secured by a mortgage on the property.  Parkway Mortgage assigned the interests to non-parties, which in turn assigned their interests.  Homeowner stopped making payments because they did not receive monthly statements.  They were said to be in default, and foreclosure followed.  A judgment was taken against the homeowners, and they wound up in bankruptcy.  The homeowners sued the mortgage company.  The lower court ruled in favor of the homeowners on the contract claim, but determined they could not recover damages for attorney’s fees or any other damages.  The court said the claim under the Unfair Trade Practices and Consumer Protection Law was properly dismissed, along with infliction of emotional distress claims.  There was no implied covenant of good faith and fair dealing.  Reliance was not proven.  Dehart v. Homeq Servicing Corp., 2017 U.S. App. LEXIS 2276 (Feb. 8, 2017).

Can Google be Sued Under the Wiretap Act? Google essentially cannot be sued under the Federal Wiretap Act.  There has to be an intentional interception or attempting to intercept the contents of an electronic communication using a device.  Companies who have placed cookies on computing devices are like one party communications, meaning that the parties are not liable under the Wiretap Act.  The Stored Communications Act prevents potential intrusions on individual privacy arising from illicit acts as to stored communications in remote computing operations and large databanks that store emails.  This Act is violated when a person intentionally accesses without authorization a facility through which an electronic communication service is provided or intentionally exceeds an authorization to access that facility and thereby obtains, alters or prevents authorized access to a wire or electronic communication while it is in the electronic storage in such system.  Google would not fall under this either.  Personal computing devices are not protecting facilities under the statute, finds the court.  The Video Privacy Protection Act is also said not to apply.  It creates a private cause of action for plaintiffs to sue persons who disclose information…

Janice Sokolsky sued her attorney, Edward Eidelman, for malpractice.  One component of a legal malpractice case is that there was merit to the underlying claim.  The underlying claim here concerned a nursing home's alleged failure to render proper care to a resident.  The court reexamined the general components for a medical malpractice case and laid forth those criteria accurately.  One might argue with the citation of authority that to pursue a claim for damages one must exhibit some "physical manifestation" of harm resulting from the injury.  At 863, citing Osborne v. Lewis, 59 A.3d 1109, 1114-1115 (Pa. Super. 2012), appeal denied 70 A.3d 812 (2013).  Certainly psychic injuries may be the basis for a claim.   Most importantly about the decision is the reiteration of the differences between direct and vicarious liability.  Preliminary objections are filed frequently in the Court of Common Pleas where plaintiff is said not to be explicit enough about who is negligent and why in the vicarious liability or corporate claim.  This opinion by Judge Mundy makes clear that the lower court erred as a matter of law when it ruled that Sokolsky could not establish…