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Federal Court Decision Underscores the Risks of Forwarding Privileged Emails

By: devweb

A recent decision by a United States District Court in California highlights the need for exercising extreme caution when forwarding emails that are subject to the attorney client-privilege. 

In Fourth Dimension Software v. Der Touristik Deutschland, GmbH, the United States District Court for the Northern District of California reviewed a discovery dispute regarding an email that had been sent by the plaintiff’s former in house counsel to the plaintiff’s president, which was then forwarded to a hotel front desk for printing.  The president’s email to the hotel front desk stated: “[p]lease print one copy. I’m waiting at the front desk. Thanks.” 

The plaintiff argued that the email from its former in-house counsel to its president was protected by the attorney client privilege, and that forwarding the email to the front desk of the hotel did not result in a waiver of the privilege.  The defendant argued that the original email was not privileged, asserting that the former in-house counsel was not acting as an attorney for the plaintiff when he sent the email, and that even if he were, the privilege was waived when the president forwarded the email to the front desk of the hotel.

The District Court agreed in part with the defendant, finding that while the attorney-client privilege applied to the original email from plaintiff’s former in-house counsel to the president, the privilege was waived when it was forwarded to the front desk of the hotel.  The Court reasoned that the original email was privileged because at the time the email was sent, the dominant purpose of the relationship between the plaintiff and its former in-house counsel was that of attorney and client.  The Court however found that the attorney-client privilege was waived when the email was forwarded to the hotel front desk because the facts did not show that the plaintiff intended or reasonably expected confidentiality when it forwarded the email to the hotel’s generic email address. The Court stated that by sending the email to a generic email address, any number of hotel staff had access to the email, and the forwarded email did not contain any notice that it should be kept confidential.

The Court’s ruling should be a warning for both attorneys and their clients that forwarding privileged emails to a third party even for the sole purpose of having the emails printed can result in a waiver of the attorney-client privilege. 

Rich Bobbe Secures Complete Exoneration for Client Facing Felony Charges

By: devweb

Weir Greenblatt Pierce partner, Richard T. Bobbe III, secured total exoneration for a client facing multiple serious felony charges, and possibly decades in prison if convicted.

Of the exoneration, Mr. Bobbe said: “(Client) came to our firm nearly two years ago.  After our initial meeting, I knew this was not going to be a case that worked out to a plea.  We had an innocent client who was being falsely accused and it was full speed ahead from day one.  (Client) knew the risks and what he was looking at if we didn’t prevail, and to his credit and his family’s credit, they were on-board.”

The client expressed his thanks to Mr. Bobbe for the result, stating that: “In a time of complete uncertainty, Rich was able to bring comfort and confidence to me and my family.  From our first meeting, Rich’s demeanor and no-nonsense attitude reassured us that we had the right firm fighting for my life.  Rich was direct and truthful with us every step of the way and kept us informed. He was relentless in his pursuit of justice on my behalf, and I will be forever grateful to him.”

Over the course of this case; from the arrest to the withdrawal of all charges prior to trial, Weir Greenblatt Pierce LLP and its attorneys and staff were able to bring their full experience, focus, and dedication to bear on behalf of (Client). Mr. Bobbe explained: “We lived with this case for two years.  The investigation we were able to do early on was vital.  Over time, we were able to present enough evidence to the District Attorney that they ultimately decided it would be against the interests of justice to proceed.  I’ll take sparing a client a trial and securing complete exoneration every single time.”

If you, a family member, friend, or client have been accused of a crime in Pennsylvania or New Jersey, please contact Rich directly at 215-241-7760 or to discuss your matter.

Noah Cohen Wins $400,000 Civil Rights Verdict for Wrongfully Imprisoned Client

By: devweb

Senior Associate, Noah Cohen recently secured a $400,000.00 jury verdict for Reed Foster, a Philadelphia citizen who was arrested, falsely imprisoned, and prosecuted based on a police officer’s false statements. Mr. Cohen was Mr. Foster’s attorney for both his criminal and civil cases. To read more about Mr. Foster’s cases, and the important strategic decision they made together, click here to read an article that recently appeared in The Legal Intelligencer.

Weir Greenblatt Pierce Team Secures Dismissal of Fraud Action Over Sale of Philmont Country Club

By: devweb

Weir Greenblatt Pierce (WGP) partners, Walter Weir, Jr., Susan Verbonitz and Alan L. Yatvin, recently secured a complete victory for their clients, Concert Golf Partners and its principal, Peter Nanula, in a fraud action brought against them by developer North Penn Towns (NPT), when United States District Court Judge Karen Spencer Marston granted summary judgment in favor of WGP’s clients on all claims.

The action arose from Concert’s purchase of the Philmont Country Club in 2017.  NPT had been a suitor for purchase of a 61-acre portion of the Club’s property for development of residential homes.  The deal fell apart in September of 2016, and Concert, which purchases distressed golf clubs, infuses capital and manages them back to financial viability, ultimately purchased the entire Club.  Concert agreed to pay off the Club’s debts of nearly a million dollars, make a set of specific capital improvements, estimated to cost approximately $4 million dollars, and agreed to make a further capital improvements of about $5 million upon sale of the development parcel.

NPT sued Philmont Country Club, the non-profit that had owned the Club of the same name, Concert, Nanula and others in the Montgomery County Court of Common Pleas over the sale.  NPT then settled with Philmont, part of which included assignment of Philmont’s non-contractual claims to NPT.  NPT then filed suit in district court against various Concert entities and Ridgewood, a developer working with Concert, alleging violations of federal antitrust law, fraud, breach of contract and conspiracy, On August 12, 2021, Judge Marston dismissed the federal antitrust and conspiracy claims, some of the fraud claims, and claims of aiding and abetting fraud.

NPT then filed an amended complaint asserting fraud, fraudulent nondisclosure, and fraudulent concealment under Restatement (Second) of Torts §§ 550 and 551, and aiding and abetting fraud.  The suit asserted that Concert and Nanula never intended to make the agreed capital improvements and that Concert’s collaboration with developer Ridgewood somehow compromised the sale price of the Club.  There was also a breach of contract claim against Ridgewood arising from an alleged breach of a confidentiality agreement.

In her July 28, 2022, Opinion granting summary judgment as to all defendants on all counts, except the breach of contract claim against Ridgewood, Judge Marston agreed with WGP that the fraud claim asserting misrepresentations as to the capital improvements was barred by the gist of the action doctrine, because the allegations of fraud involved duties that were outline in the sales agreement.  Because the action sounded in contract, not tort, the fraud claims were barred. 

NPT’s fraudulent concealment and non-disclosure claims under the Restatement (Second) of Torts related to alleged failure to disclose and actively concealing that Concert and Ridgewood were working together.  Judge Marston dismissed these claims after concluding that Concert and Nanula had no duty to disclose their relationship which was neither material nor basic to the transaction and that Ridgewood was not a party to a business transaction with Philmont.  Finally, because the fraud claims were dismissed as to all defendants, the aiding and abetting fraud claims were also dismissed.

Commenting on the decision, Walter Weir, Jr., said:  “This was an astounding victory for the defendants and represents the best of our judicial system to ferret out and make simple what was an unnecessarily complicated case.”

Read the Full Opinion here: Summary Judgment Memorandum Opinion

Read more about the case in the Legal Intelligencer here: Fraud Claim Over Sale of Philmont Country Club Dismissed

Partners Brett A. Datto And Jennifer Hiller-Nimeroff Obtain Significant Victory For Client In NCAA Eligibility Appeal

By: devweb

Weir Greenblatt Pierce LLP is pleased to announce that it has won a significant victory on behalf of a client who was denied a sixth year of eligibility to play college football this fall.  On July 13, 2022, the NCAA granted the appeal of Brandon Outlaw, who had requested that the NCAA reverse a decision by the University of Southern California finding him ineligible to play, citing Brandon’s prior participation in both track and field and football.  In reversing the university’s decision, the NCAA found that Brandon had been denied “multiple participation opportunities” due to his financial hardship and the COVID-19 pandemic.  The ruling means that Brandon will be allowed to suit up and play football this fall for the Trojans.

Brandon’s lawyers, Brett A. Datto and Jennifer Hiller-Nimeroff, complimented the NCAA for its swift and careful consideration of the facts of Brandon’s case and noted that both legal and equitable factors played a key role in the matter.  Mr. Datto has been representing athletes at the local, state and national levels for over 30 years, and currently represents several current and former semi-professional and professional athletes in personal and business matters.  Ms. Hiller-Nimeroff is an experienced lawyer with nearly 25 years of litigation experience, representing the interests of individuals and businesses in complex legal matters.

Weir Greenblatt Pierce LLP Secures Summary Judgment For Client In COVID-19 Breach of Contract Case

By: devweb

            Weir Greenblatt Pierce LLP partners Walter Weir, Jr. and Steven E. Angstreich secured a significant victory for their client in an action against a commercial tenant for breach of lease due to the tenant’s failure to pay rent during the COVID-19 pandemic.  In granting summary judgment in favor of their client, the Superior Court of New Jersey rejected the tenant’s argument that the COVID-19 pandemic relieved the tenant of its obligation to pay rent under the doctrines of frustration of purpose and impracticability.

          The action arose from the tenant’s breach of a 10-year commercial lease when it refused to pay rent claiming that the pandemic frustrated its purpose for entering the lease, and that it was unable to perform under the lease terms. The issues in the case involved questions of whether a party may cite the effects of the COVID-19 pandemic to void its obligations under a contract, and whether the contract itself included provisions that would allow a party to do so.

            The tenant, who was a provider of medical services, alleged, among other things, that because the pandemic caused an increase in demand for remote services and a decrease in demand for in-person services, the agreement became less profitable and its primary purpose for entering the agreement had been frustrated. The tenant further alleged that performance became impracticable for the same reason and argued that it should no longer have to pay rent.

            In granting summary judgment, the New Jersey Superior Court found that the lease clearly states that the premises would be used for “medical services” as provided by the tenant and included no language regarding contingencies. The Court also noted that the lease clearly indicated that any failure to pay rent would amount to a material breach of the agreement. The Court ultimately held that although the COVID-19 pandemic was an unforeseeable circumstance, “[n]o rational fact finder could find that the performance here was literally impossible or made inordinately more difficult by COVID-19, as the only performance required by Defendant tenant was to pay their rent.” The change in demand for in-person medical services, according to the Court, did not frustrate any purpose contemplated in the language of the agreement between the Parties, and did not render the tenant unable to perform its obligation to pay rent under the lease. Accordingly, the Court granted summary judgment in favor of the landlord.

            The full Opinion may be read here.