Larry Pitt & Associates v. Lundy Law, Llp et al

MOTION for Summary Judgment

E.D. Pa.March 6, 2017

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ) LARRY PITT & ASSOCIATES, ) ) Plaintiff, ) Civil Action No. 13-02398-CMR ) v. ) ) LUNDY LAW, LLP, et al., ) ) Defendants. ) ) DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants Lundy Law, LLP and L. Leonard Lundy (“Defendants”) move for summary judgment pursuant to Federal Rule of Civil Procedure 56(a) and hereby submit this initial filing as required by the Court’s policies and the Court’s December 13, 2016 scheduling order (Doc. No. 159). This Motion is directed to the following issues and sub-issues contained in Plaintiff’s Second Amended Complaint (“SAC”) (Doc. No. 38): I. Plaintiff Cannot Prove a Violation of the Lanham Act (Count V). A. Plaintiff cannot prove that Defendants made false or misleading statements regarding the legal services that Lundy Law provides. B. Plaintiff cannot prove that Defendants’ statements regarding the legal services that Lundy Law provides actually deceived or have a tendency to deceive a substantial portion of the intended audience. C. Even if there were any deception, it was not material, in that it was not likely to influence potential clients’ decisions to engage Lundy Law rather than some other lawyer or law firm. Case 2:13-cv-02398-CMR Document 169 Filed 03/06/17 Page 1 of 5 2 D. Plaintiff did not sustain an injury that was proximately caused by Defendants’ alleged false or misleading statements regarding the legal services that Lundy Law provides, because, inter alia: 1. Plaintiff cannot show that, without Defendants’ alleged false or misleading statements, potential clients or consumers would have retained Plaintiff, as opposed to the numerous other workers’ compensation and Social Security disability attorneys in the Greater Philadelphia area, or that the representation would have resulted in an award of fees; 2. Plaintiff cannot show that Defendants’ alleged conduct, rather than Plaintiff’s own actions or inactions, caused Plaintiff’s alleged injury; and 3. Plaintiff cannot show that Plaintiff’s alleged injury was caused by Defendants’ alleged false or misleading statements, rather than changes in the competitive environment and in the markets for and profitability of workers’ compensation and Social Security disability cases in the Greater Philadelphia area. E. Plaintiff suffered no actual damages. F. Plaintiff’s claim is barred because Plaintiff has unclean hands because, inter alia, Plaintiff has advertised for legal services that it does not substantially provide without advising consumers that cases may be referred to other law firms. II. Plaintiff Cannot Prove a Violation of Pennsylvania law for Unfair Competition Through False, Misleading or Deceptive Advertising (Count VI; see also Sept. 30, 2014 Mem. Op., Doc. No. 65, at 15). Case 2:13-cv-02398-CMR Document 169 Filed 03/06/17 Page 2 of 5 3 A. For the same reasons stated above with respect to the Lanham Act (Count V), Plaintiff cannot prove a violation under Pennsylvania law for unfair competition through false, misleading, or deceptive advertising. III. Plaintiff Cannot Prove a Violation of Pennsylvania Law for Unfair Competition Through Receipt of Competitively Sensitive Information from Titan Employee Sara Lundy (Count VI; see also Sept. 30, 2014 Mem. Op., Doc. No. 65, at 15). A. There is no evidence that Defendants misappropriated any trade secret or confidential information, or were provided with information that was confidential or a trade secret. B. Defendants did not appropriate Plaintiff’s intangible trade values or harm Plaintiff’s commercial relations, as Sara Lundy never provided Defendants with any confidential or non-public information. C. Defendants’ receipt of information from Sara Lundy did not harm Plaintiff’s commercial relations or otherwise injure Plaintiff. D. Plaintiff cannot prove that any alleged receipt of information by Defendants was the proximate cause of any alleged injury suffered by Plaintiff. E. Plaintiff’s claim is barred because Plaintiff has unclean hands because, inter alia, Plaintiff sought and received from Titan information regarding Lundy Law’s advertisements. IV. Plaintiff Cannot Prove a Violation of Pennsylvania’s Dragonetti Act, 42 Pa. C.S.A. § 8351 (Count VIII). A. Defendants had probable cause to initiate the lawsuit captioned Lundy Law, LLP v. Larry Pit & Associates, E.D. Pa. No. 13-cv-01161 (the “Trademark Lawsuit”). Case 2:13-cv-02398-CMR Document 169 Filed 03/06/17 Page 3 of 5 4 B. Defendants both pursued and discontinued the Trademark Lawsuit after seeking in good faith and relying upon the legal advice of counsel. C. The proceedings in the Trademark Lawsuit did not terminate in Plaintiff’s favor, as Defendants voluntarily dismissed the Trademark Lawsuit without prejudice. D. Plaintiff did not suffer damages in defending against the Trademark Lawsuit. There is no genuine dispute as to any material fact, and Defendants are entitled to judgment as a matter of law. Consistent with Federal Rule of Civil Procedure 11, Defendants affirm that they have a legally sufficient evidentiary basis for this motion. Defendants also affirm, on information and belief, that Plaintiff Larry Pitt & Associates has no legally sufficient evidentiary basis to prevail on the issues and sub-issues outlined above. Accordingly, Plaintiff requests judgment on all counts. DATE: March 6, 2017 /s/ Robert C. Heim___ Robert C. Heim Judy Leone Ellen Mossman Julia Chapman DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 T: 215.994.4000 F: 215.994.2222 Attorneys for Defendants Lundy Law LLP & L. Leonard Lundy Case 2:13-cv-02398-CMR Document 169 Filed 03/06/17 Page 4 of 5 CERTIFICATE OF SERVICE I, Ellen L. Mossman, hereby certify that on March 6, 2017, I caused to be served a true and correct copy of the forgoing upon all counsel of record through this Court’s ECF system. /s/ Ellen L. Mossman Ellen L. Mossman Case 2:13-cv-02398-CMR Document 169 Filed 03/06/17 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ) LARRY PITT & ASSOCIATES, ) ) Plaintiff, ) Civil Action No. 13-02398-CMR ) v. ) ) LUNDY LAW, LLP et al., ) ) Defendants. ) ) JOINT STATEMENT OF STIPULATED FACTS The parties hereby jointly stipulate to the following facts: 1. Lundy Law LLP (“Lundy Law”) is a law firm based in Philadelphia, Pennsylvania. 2. Lundy Law has four offices in Pennsylvania—one in Philadelphia and one each in Berks, Montgomery and Northampton Counties—an office in Wilmington, Delaware, and an office in Cherry Hill, New Jersey. 3. Lundy Law has used the slogan “Remember this Name” in advertising. 4. Lundy Law has advertised for workers’ compensation cases since at least February 2008. 5. Lundy Law has advertised for social security disability cases since at least November 2008. 6. Lundy Law has used advertisements utilizing the phrase, “Injury & Disability Lawyers.” 7. Larry Pitt & Associates is a law firm based in Philadelphia, Pennsylvania. 8. Larry Pitt & Associates has six offices—three in Philadelphia and one each in Berks, Bucks and Delaware Counties. 9. Larry Pitt & Associates advertises for workers’ compensation cases. Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 1 of 8 2 10. Larry Pitt & Associates has advertised for social security disability cases since at least 2008. 11. Larry Pitt & Associates has used the slogan “Remember this Number” in advertising. 12. Larry Pitt & Associates’ competitors for workers’ compensation cases include, but are not limited to, Lundy Law, Pond, Lehocky, Stern & Giordano (“Pond Lehocky”), Martin Law, and Krasno, Krasno & Onwudinjo. 13. Larry Pitt thinks of all law firms in the Greater Philadelphia area with social security disability practices as being competitors with Larry Pitt & Associates in that field of law. 14. Lenard Cohen performs workers’ compensation work in Pennsylvania and has been certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Workers’ Compensation Law Section. 15. Lenard Cohen maintains his own separate law firm, Law Offices of Lenard A. Cohen P.C. 16. Lenard Cohen has been given Lundy Law business cards and a Lundy Law email address by Lundy Law. 17. Lenard Cohen maintains an office within the Law Offices of Lenard A. Cohen P.C. 18. The office space for the Law Offices of Lenard A. Cohen (including Lenard Cohen’s personal office) has been located within the office space rented by Lundy Law since September 2012. 19. Lenard Cohen sometimes attends Lundy Law attorney meetings and occasionally participates in Lundy Law marketing meetings. 20. Lundy Law attorneys Paul Sochanchak and Adam Wilf have worked on workers’ compensation cases for Lundy Law. Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 2 of 8 3 21. From November 11, 2008 until February 2011, Lundy Law had an agreement with the law firm Fleschner, Stark, Tanoos & Newlin (“Fleschner Stark”) whereby Fleschner Stark and Lundy Law would jointly pay for advertising in the Philadelphia DMA for social security disability cases, and Lundy Law would refer all of its potential social security disability cases to Fleschner Stark in return for a referral fee. 22. From March 1, 2011 until October 31, 2013, Lundy Law had an agreement with the law firm Pond Lehocky. From March 1, 2011 until December 31, 2012, Pond Lehocky sponsored and paid the costs for Lundy Law advertising for social security disability cases, and Lundy Law referred all of its potential social security disability cases to Pond Lehocky in return for a referral fee. From January 1, 2013 until October 31, 2013, Lundy Law continued to refer all of its potential social security disability cases to Pond Lehocky in return for a referral fee. 23. The terms of the agreement between Pond Lehocky and Lundy Law provide, in part, that Pond Lehocky was to “introduce itself to each Lundy Law Case client and explain the relationship between both law firms on the initial telephone call in accordance with a script approved by Lundy Law.” 24. A document entitled “Two Great Law Firms…Working for You!” states, in part, as follows: “Lundy Law proudly announces its exclusive partnership with Pond Lehocky Stern Giordano (PLSG), an experienced law firm that concentrates on Social Security Disability cases, to handle our clients’ Social Security claims. We are excited about this relationship. We have known and worked with PLSG for many years. They are good people and great lawyers.” An email from Pond Lehocky’s Legal Marketing Director states that Pond Lehocky sends this “Two Great Law Firms” document to clients. Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 3 of 8 4 25. On March 4, 2013, Lundy Law filed a complaint against Larry Pitt & Associates in the United States District Court for the Eastern District of Pennsylvania for alleged trademark infringement, in a case captioned Lundy Law, LLP v. Larry Pitt & Associates, E.D. Pa. No. 13-cv-01161 (the “Trademark Suit”). 26. Lundy Law was represented by Manny Pokotilow and Salvatore Guerriero of the law firm Caesar Rivise Bernstein Cohen & Pokotilow Ltd in the Trademark Suit. 27. Larry Pitt & Associates retained and was represented by Carl Hittinger, Jacqueline Lesser, Lesli Esposito and Nancy Rubner of the law firm Woodcock Washburn in the Trademark Suit. In 2014, Woodcock Washburn merged into the law firm Baker Hostetler. 28. On March 4, 2013, Lundy Law filed a Motion for Preliminary Injunction and a memorandum in support thereof in the Trademark Suit. edpa 29. On March 18, 2013, Larry Pitt & Associates filed a memorandum in opposition to Lundy Law’s Motion for Preliminary Injunction in the Trademark Suit. 30. Lundy Law filed a Reply in support of its Motion for Preliminary Injunction in the Trademark Suit on March 28, 2013. 31. On April 18, 2013, Lundy Law terminated the Trademark Suit by filing a notice of voluntary dismissal without prejudice. 32. Larry Pitt & Associates’ insurance company covered at least some of the expenses incurred by Larry Pitt & Associates in defending against the Trademark Suit. 33. In July 2013, attorney Wilbur Seitzinger joined Larry Pitt & Associates as an associate attorney. Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 4 of 8 5 34. Wilbur Seitzinger’s practice at Larry Pitt & Associates consists predominantly of social security disability cases. 35. Since Wilbur Seitzinger joined Larry Pitt & Associates in July 2013, the number of social security disability cases handled by Larry Pitt & Associates in house has increased. 36. From November 2013 until approximately May 2014, Lundy Law had an agreement with the law firm Crumley Roberts whereby Crumley Roberts would pay for social security disability advertising under the Lundy Law brand in the Philadelphia DMA and Lundy Law would refer all of its potential social security disability cases to Crumley Roberts, with the exception of a small number which Lundy Law would retain in house. In return, Crumley Roberts would pay Lundy Law a referral fee. 37. Crumley Roberts created a “Disclosure of Division of Fees” document which stated, in part, as follows: “You have employed CRUMLEY ROBERTS, LLP as lawyers to represent you in the following matter: Social Security Disability and/or Supplemental Security Income. Crumley Roberts, LLP has associated Lundy Law to assist in the investigation and representation of your case. Crumley Roberts, LLP and Lundy Law will share in legal fees earned in your case. The fee will be divided eighty five percent (85%) to Crumley Roberts, LLP and fifteen percent (15%) to Lundy Law in your case…Your signature to this Disclosure of Division of Fees certifies that you have been told of the agreement between Lundy Law and Crumley Roberts, LLP, Lundy Law will be paid a portion of any legal fee generated by your matter, and that you have no objection.” 38. A document entitled “Two Great Law Firms…Working for You!” states, in part, as follows: “Lundy Law proudly announces its partnership with Crumley Roberts, an Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 5 of 8 6 experienced law firm that concentrates on Social Security Disability cases, to handle many of our clients’ Social Security claims. We are excited about this relationship. We have known and worked with Crumley Roberts for many years. They are good people and great lawyers.” 39. Lundy Law’s workers’ compensation advertisements did not affirmatively represent that Lundy Law employees handled all aspects of workers’ compensation cases. 40. Larry Pitt & Associates’ advertisements for social security disability cases do not include a disclaimer advising that cases may be referred to other law firms. 41. Lundy Law advertised on SEPTA through Titan (“Titan”), an advertising company now known as Intersection Media that has the exclusive right to sell advertisements on behalf of SEPTA. 42. Leonard Lundy’s daughter, Sara Lundy, was employed as an account executive for Titan and is now an account executive for Intersection Media. 43. Sara Lundy was, at times relevant to this litigation, the account executive for the Lundy Law advertising account at Titan. 44. In correspondence with Leonard Lundy and other Lundy Law employees, Sara Lundy provided information to Lundy Law regarding the business relationship between Titan and Lundy Law, including advertising offers for Lundy Law, advertising location availability for Lundy Law advertisements, advertising discount offers for Lundy Law, advertising contracts between Titan and Lundy Law, advertising proposals for Lundy Law, and information about Lundy Law advertisements running on public transit. 45. In correspondence with Leonard Lundy and other Lundy Law employees, Sara Lundy provided information to Lundy Law including public transit ridership information, the Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 6 of 8 7 names of law firms with public advertisements running through Titan, photographs of advertisements by law firms appearing in public, and information on where law firm advertisements ran publicly and the types of advertisements that ran at that point in time. 46. Lundy Law requested, and Sara Lundy provided to Lundy Law, the identity of law firms advertising with Titan and the locations of those advertisements appearing in the public. Lundy Law employees also requested, and Sara Lundy provided to Lundy Law, the types of law firm advertisements running in public at certain points in time, and the location of those advertisements. 47. In March 2013, Larry Pitt & Associates requested and received information from Titan account executive Charles Hurley about old advertising proofs that Lundy Law had been using. 48. According to the tax returns filed by Larry Pitt & Associates, Larry Pitt & Associates took deductions for advertising expenditures of $774,375 in 2007, $640,482 in 2008, $700,194 in 2009, $674,743 in 2010, $479,012 in 2011, $346,961 in 2012, $294,852 in 2013, $328,133 in 2014 and $615,042 in 2015. 49. Pursuant to Larry Pitt & Associates’ financial records, Larry Pitt & Associates incurred advertising expenditures of $674,847 in 2007, $768,663 in 2008, $602,020 in 2009, $675,343 in 2010, $475,612 in 2011, $342,408 in 2012, $292,270 in 2013, $413,441 in 2014 and $515,003 in 2015. DATE: March 6, 2017 /s/ Geoffrey Paul Huling (with permission) /s/ Robert C. Heim_____ Maurice R. Mitts Robert C. Heim Gerard M. McCabe Judy Leone Geoffrey Paul Huling Ellen Mossman MITTS LAW, LLC Julia Chapman 1822 Spruce Street DECHERT LLP Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 7 of 8 8 Philadelphia, PA 19103 Cira Centre T: 215.866.0110 2929 Arch Street F: 215.866.0111 Philadelphia, PA 19104-2808 T: 215.994.4000 Attorneys for Plaintiff F: 215.994.2222 Larry Pitt & Associates Attorneys for Defendants Lundy Law LLP & L. Leonard Lundy Case 2:13-cv-02398-CMR Document 169-1 Filed 03/06/17 Page 8 of 8