Articles by Our Attorneys

Phil Mickelson, Bryson DeChambeau and nine of their fellow golfers filed a lawsuit against the PGA Tour. The 101 page Complaint alleges, among other things, that the PGA Tour violated the Antitrust Laws of the United States by acting as a monopoly to crush competition. The competition that the PGA Tour is allegedly attempting to crush is, of course, the upstart Saudi Arabia-backed LIV golf tour. The lawsuit is pending in Federal Court in the Northern District of California.  

Unless some settlement is reached (which seems highly unlikely), this lawsuit promises to be both entertaining and precedent setting for possible future lawsuits against professional sports leagues. Given the behemoth law firms that will be involved on both sides, it is also likely that this case could impact antitrust law in other industries for years to come.  

The antitrust laws in this country are found in the Sherman Act (15 U.S.C. § 1, et seq.). These laws provide, among other things, that it is illegal to acquire or maintain a monopoly through anticompetitive conduct. In order to establish a violation of Section 2 of the Sherman Act, Phil Mickelson and his fellow golfers will have to show (1) the possession of monopoly power in the relevant market, and (2) the willful acquisition or maintenance of that power. Stated in layman’s terms, Phil’s attorneys are arguing that the PGA Tour is, essentially, the only game in town and that the PGA Tour is using its power to quash competition (namely the LIV tour). This is a highly complex area of the law.

One of the benefits of an antitrust lawsuit is that the statute permits the prevailing plaintiff to receive trebled damages. This means that any award the plaintiff is able to obtain for violation of antitrust laws entitles the plaintiff to three times what is awarded. The prevailing plaintiff also receives attorney’s fees and costs.  

Interestingly, the Sherman Antitrust Act is not necessarily designed to just protect the plaintiff golfers here.  The golfers will need to focus their arguments on establishing that the PGA Tour’s alleged anti-competitive behavior somehow harms consumers (the public that views these golf tournaments). The argument will have to be that the PGA’s actions restrict competition to such an extent that the quality of the product is diminished for the viewing public.  This will undoubtedly be a focus of the PGA’s defense. The PGA will also likely assert that there is no monopoly as the plaintiff golfers are permitted to play in other tours.

The allegations in the Complaint go beyond the alleged violations of the Antitrust Act. The Complaint also charges the PGA with unlawful restraint of trade and breach of contract. The contract in question is the agreement that all players enter into when they agree to be members of the PGA.

While the lawsuit could potentially go on for years, we could have an early indication of the Court’s thinking on plaintiffs’ case as three of the golfers are seeking an immediate injunction. These three golfers want an early ruling so that they may be permitted to take part in the very lucrative FedEx Cup playoffs, set to begin shortly after the filing of the Complaint.

This is by no means the first antitrust action brought with regards to professional sports.  In 1986, the upstart USFL filed an antitrust lawsuit against the NFL.  The USFL alleged (similar to the golfer plaintiffs here) that the NFL engaged in anticompetitive behavior to crush the upstart league. After an extended Court battle, the USFL actually won a jury verdict against the NFL. The NFL was found to have violated the antitrust laws.  But this result shouldn’t give Phil and his friends comfort.  Unfortunately for the USFL, the jury famously (or infamously) awarded only $1.00 in damages.  But with the treble damages provision of the Sherman Act, the award was increased to $3.00.  After years of litigation and millions spent in legal fees, the final award (with interest) was a whopping $3.76.

We will follow the Mickelson v. PGA case closely.  Stay tuned …!

*Robert A., Burke is a trial attorney and a Partner in MacElree Harvey’s Commercial Litigation Department

I have been very successful recently in having tax sales completely overturned and the property given back to my clients.

In the first case, the hearing started off with the Judge yelling at my clients because they had not updated their address with the tax assessment office so when the tax claim bureau tried to serve the notice of tax sale on them they never received it. We won that case on a technicality which requires the tax claim bureau to provide proof that they sent the notice of tax sale to the owner(s) by first class mail after the certified mail was returned unclaimed. The solicitor for the tax claim bureau told me after the case that he didn’t even know that was a requirement. The Judge completely changed her tune after I gave her a trial memo which showed that the court was required to overturn the tax sale if the tax claim bureau did not have proof of mailing by first class mail which was the case in this matter. In addition, we were able to have the Judge order the tenant to vacate the property and my client was only required to pay her $4,500.00 for her expenses in moving in and moving out.

In another case, while our client was in prison, the tax claim bureau sold his property at tax sale and never gave him any notice. Even though the tax claim bureau obtained a court order allowing them to sell certain owners’ property without having them personally served, we had the sale overturned on the grounds that the tax claim bureau did not do a reasonable search to find our client. All the tax claim bureau had to do was go on the judicial website and put in my client’s name and it would show what prison he was in. It is kind of like one hand of the government takes someone and locks them up and while he is there the other hand of the government sells his property without giving him notice or an opportunity to be heard. The Judge found that the tax claim bureau did not engage in reasonable notification efforts to ascertain the whereabouts of the property owner. He found that without personal service of the notice of tax sale or the establishment of good cause to waive personal service, the tax 4590599v1 000001.00019 sale of the property was void and would be set aside. We made new law in the case. We also sued the people who bought our client’s property at tax sale while he was in prison and obtained a default judgment against them because while he was in prison they went in and took every item of personal property that he had in the house and disposed of the vast majority of it without providing an accounting and then rented his property to a third party. They had no right to do that especially since they never secured a deed to our client’s property.

The most important thing to remember is to hire counsel experienced in this area of the law as soon as you learn of the tax sale. The sooner you act, the better your chances are to be successful.

Contact Michael G. Louis at [email protected] or via phone at (610) 840-0228.

In July 2022, the EEOC provided a significant update on COVID-19 workplace policy, and America’s two largest retailers fell under scrutiny for their workplace practices, with a Philadelphia-based employee class action against Walmart, and nationwide investigation into Amazon fulfillment centers.  Find out more in the employment law update below.

EEOC Issues Guidance on Mandatory COVID-19 Workplace Testing

In guidance issued earlier this month, the U.S. Equal Employment Opportunity Commission (“EEOC”) indicated that employers will now need to specifically assess pandemic and workplace circumstances in order to justify mandatory COVID-19 testing of employees.  In the absence of this recent guidance, worksite COVID-19 testing was permitted without any specific justification or assessment on the part of the employer.

In short, the EEOC stated that employers must show that COVID-19 testing is job-related and consistent with business necessity, and provided several potential factors to consider when making an assessment, including:

• The current levels of COVID-19 community transmission;
• The vaccination status of employees;
• The degree of breakthrough infections of fully vaccinated employees;
• The transmissibility of current variants;
• The potential severity of illness from current variants;
• The level of contacts employees may have with others during the course of their work;
• The potential impact upon the employer’s operations if an infected employee enters the workplace.

Moving forward, employers should give consideration to (and consider documenting) how these new guidelines will be factored into their workplace COVID-19 policies.

Lawsuit filed against Walmart in Philadelphia alleges violations of the City’s Fair Workweek Law

According to a proposed class action filed in Pennsylvania state court, Walmart workers in Philadelphia claim the company violated the local “Fair Workweek Law” by failing to provide them with work schedules 10 to 14 days in advance or give them “predictability pay” when their schedules were changed within that window.  The lawsuit asserts claims for five different types of violations of the Fair Workweek Law, and noted that each instance of a violation could result in statutory damages ranging from $25 to $1,000 per pay period.

In Philadelphia, the Fair Workweek Law provides predictable scheduling to certain service, hospitality, and retail workers.  It requires “Covered Employers” to:

• post and provide a written 10-day advance notice of work schedules;
• provide predictability pay for all employer initiated changes to the posted schedule;
• allow employees to refuse to work additional hours not included in the posted schedule;
• offer existing employees the right to additional work shifts before hiring new employees; and,
• schedule nine hours of rest between certain shifts unless the employee provides a written consent and payment of $40.

“Covered Employers” under the law are retail, hospitality, or food services establishments that employ 250 or more employees including all full-time, part-time, and temporary workers and have 30 or more locations worldwide. This includes franchises and chains and then temporary employees hired through an agency.

The case is Washington et al. v. Walmart, case number 220701449, in the Court of Common Pleas for Philadelphia, Pennsylvania.

Amazon Warehouses under Investigation by OSHA for Safety Hazards

The Occupational Safety and Health Administration (“OSHA”), in conjunction with New York federal prosecutors, inspected Amazon warehouses this month in New York City, Chicago and Orlando, Florida, after investigators received complaints about the working conditions.  The Southern District of New York’s civil division is investigating the potentially hazardous working conditions at warehouses across the country as well as whether Amazon committed fraud by hiding worker injuries from OSHA.  The investigation follows a slew of serious incidents and allegations relating to workplace safety, including: news that an employee died at one of Amazon’s fulfillment centers in New Jersey during the company’s Prime Day event; a lawsuit concerning another employee being killed in a fulfillment center collapse in Illinois; and a recent report from the National Council for Occupational Safety and Health that included Amazon on a “dirty dozen” list of businesses that have committed “egregious” safety violations that endangered their workers.  Recent efforts to unionize a facility in Alabama failed, where workers claim that the pace of work that the company expects is untenable and dangerous.  Amazon’s commented publicly in response to the investigation that it will cooperate with the investigation and believes the investigation “will ultimately show that these concerns are unfounded.”

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

Get ready to sort through your digital receipts. Starting with this 2022 tax year, Third-Party Settlement Organizations (TPSOs) such as Venmo, Cash App, and PayPal are required to report payment of commercial transactions that total $600 or more per year to the Internal Revenue Service (IRS), and, therefore, will be sending qualifying users a Form 1099-K.

This new rule is among the 243 pages of The American Rescue Plan Act of 2021, more aptly known as the $1.9 trillion economic stimulus package signed by President Biden into law on March 11, 2021.

Previously, apps like Venmo and Cash App were only required to report to the IRS when a user had both (i) over 200 commercial transactions and (ii) gross payments in excess of $20,000. Under the new rule, TPSOs are now required to report to the IRS payments amounting to more than $600 in total during the course of the year regardless of the number of transactions. Ultimately, anyone whoreceives payment(s) of $600 or more from goods or services this year will receive a Form 1099-K. The end result is that many more Americans will be receiving a Form 1099-K this tax year, many of whom will be receiving one for the first time. Some tax lobbyists estimate the number of Americans receiving a 1099-K this year could be as high as 20 million.

Form 1099-K is simply an informational form, listing both taxable and nontaxable income. All taxable income must be listed on one’s income tax return. Thus, it is essential, now more so than ever, to keep accurate and detailed records of your digital expenses and payments. Consider the following example: Five years ago you bought a coffee table for $200. A few years have passed and you sold it this year for $100; you were paid via Venmo. You receive a 1099-K for this tax year because your aggregate Venmo receipts total over $600. Is that $100 subject to income tax? Without a receipt showing the coffee table’s original $200 sales price and, thus, proof that you sold it for a $100 loss, it very well could be. As you can see, the practical implications are endless.

If all of this sounds unsettling to you, there are two pieces of good news:

(1) The rule only applies to commercial goods or services, not personal charges.

(2) This is not a new tax, but rather a new reporting requirement. The IRS is not taxing users on individual transactions.

The first point above bears repeating. The IRS is not taxing you on your payment of this month’s rent to your roommate or you being paid by your brother for a shared Christmas gift. Those are personal, and this new rule only applies to commercial goods or services. However, this only further necessitates the importance of keeping accurate records. TPSOs will send you a Form 1099-K if you trigger this new $600 threshold without necessarily differentiating which payments are personal and which are commercial. Fortunately, Venmo has a feature that allows users to tag a payment as being for “goods and services”. Although this feature may help users stay organized going forward, do not be surprised if you, like millions of other Americans, receive a Form 1099-K in the mail this year.

Matthew C. Cooper is an attorney at MacElree Harvey specializing in business and corporate law. He counsels businesses of various sizes and industries through all stages of the business life cycle, including representing management and boards of directors by helping them stay compliant with the ever-changing landscape of corporate law. Matthew frequently represents businesses in private financings and mergers and acquisitions, and is a trusted adviser to lenders and borrowers in commercial lending transactions. If you have any corporate or business law needs, please contact Matthew C. Cooper at (610) 840-0279 or [email protected].

Whether it be the price of avocados, gasoline, or housing prices and inflation are going up and causing many Americans to buckle down and create savings wherever they can. Then, as many custodial parents have also encountered, the curve ball comes: another Petition to Modify Custody. So much for saving money, right?

When we hear and read headlines of celebrities getting attorney fees awards in their highly publicized cases, surely a parent, who is only doing what’s right and best for Little Johnny or Janey should have their fees paid by the other side too, right? Wrong.

A discussion I have with many clients, and not just those involved in custody disputes, flows from the question: Will they have to pay my legal fees?

Fortunately, or unfortunately (depending on your perspective) there are limited instances where a party is able to recover legal fees. In the context of Child Custody Litigation, the wise and noble Pennsylvania Legislature saw fit to provide us with statutory authorization to seek fees in child custody actions.

Pursuant to Section 5339 of the Child Custody Act, “a court may award reasonable interim or final counsel fees, costs, and expenses to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive, or in bad faith.”

23 Pa.C.S.A. § 5339

So how often does this actually happen? When can a client expect to get counsel fees? It depends on the facts and circumstances of the case. Some matters are clear cut, others are anything but; however, I’ve seen awards in instances of both.

To find out if you would be eligible for counsel fees in your child custody, divorce, or other domestic relations related matter, contact Attorney Michael Rovito today to schedule a consultation.