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Inside Initiative January 2015

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MacElree Harvey, Ltd. would like to welcome you to Inside Initiative—our new monthly newsletter featuring the latest news, topics and trends in law. Our attorneys are some of the top legal minds in Southeastern Pennsylvania—as evidenced by their many awards and accolades. Let them help you stay one step ahead of the law.
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January 2015 INSIDE INITIATIVE Issue 1 NEW YEAR. NEW-SLETTER... Our New Year’s Resolution this year is to keep you better informed. MACELREE HARVEY, LTD. | ATTORNEYS AT LAW | MACELREE.COM
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January 2015

INSIDE INITIATIVEIssue 1

NEW YEAR.NEW-SLETTER... Our New Year’s Resolution this year is to keep you better informed.

MACELREE HARVEY, LTD. | ATTORNEYS AT LAW | MACELREE.COM

IN THIS EDITIONCould Your Social Media Strategy Get You Sued? Andrew Silverman

Not All Debt is Created Equal PACA: How the Law Supports Local GrowersCharles Gerbron

In the News

Community Update

MacElree Harvey, Ltd. would like to welcome you to Inside Initiative—our new monthly newsletter featuring the latest news, topics and trends in law. Our attorneys are some of the top legal minds in Southeastern Pennsylvania—as evidenced by their many awards and accolades. Let them help you stay one step ahead of the law.

Inside Initiative is published for friends, clients and employees of MacElree Harvey, Ltd. Email address changes, questions, comments or requests for printed copies of the Firm’s newsletter should be directed to Marketing, MacElree Harvey, Ltd. at 610-840-0222 or 17 West Miner Street, West Chester, PA 19382. Contact us by e-mail: [email protected]. Our monthly newsletter can also be obtained from our website, www.macelree.com

Copyright ©2015, All Rights Reserved.

STAY SOCIAL

Stay up to date with everything happening all month long at MacElree Harvey, Ltd. by connecting with our social media pages.

For small businesses, the practice of using media for online marketing and social media has become an increasingly complicated one with many potential legal pitfalls. There are now contractors available to copyright owners whose sole function is to police the Internet for copyrighted material and enforce these copyrights by demanding high settlement payments or, in the alternative, by filing lawsuits in federal court.

Recently, MacElree Harvey represented a small business in defense of one of these claims and we found that litigation might have been avoided had certain policies been put in place. If your company uses photographs, music, or other media created by third parties in its marketing or social networking strategy, the following tips are a good start to protect your rights and avoid liability: UNDERSTAND THE POTENTIAL LEGAL IMPLICATIONS RELATED TO THE MISUSE OF INTELLECTUAL PROPERTY.Why is a strategy for use of third party media a good idea? Because copyright misappropriation, misuse, and infringement carries with it potentially serious consequences.

Under federal law, copyright owners can not only obtain an injunction against an infringer in federal court, but also damages. Damages include direct monetary damages for actual monetary loss or, in the alternative, statutory damages that may be in the thousands of dollars. These monetary damages may be awarded even if the infringer did not intend to violate the copyright. In addition, a court can award the copyright owner costly attorneys’ fees. In some cases, even criminal charges can be filed. 17 U.S.C. § 502, et seq.

DEVELOP A STRATEGY AND WRITE IT DOWN.If your business uses third party media in its social networking and marketing campaigns, a plan should be developed to cover the use of that media. The plan should then be committed to writing and provided to employees.

The terms of this plan should be designed to limit the misuse and misappropriation of third party media by employees who use third party media in developing websites, written and audible marketing materials, and advertising on social networking sites.

It is also recommended that you designate in the plan one person to receive and respond to accusations of infringement.

UNDERSTAND THE TERMS AND CONDITIONS OF SOCIAL NETWORKING WEBSITES PRIOR TO USE.If your company utilizes social networking websites, it is important to understand the rights and potential liabilities in connection with the use of those sites. This is particularly true regarding the website’s restrictions on advertising, legal responsibilities assumed for liability related to the website, whether your company waives any rights to its own intellectual property, whether licenses are necessary, and legal recourses available should something go wrong.

An understanding of these issues will help your company make decisions that protect its rights and prevent liability for misuse of intellectual property.

EXERCISE CAUTION WHEN PURCHASING LICENSES TO USE THIRD PARTY MEDIA FOR MARKETING PURPOSES.If your business purchases licenses to use third party media, it is important to perform due diligence on the vendor to be sure that it has permission to sell the license. Second, understand the scope of the license purchased and be sure not to exceed it. Finally, limit the number of employees authorized to purchase licenses. This will help the business keep track of the licenses and records should it ever be accused of copyright infringement.

The above tips are a good start toward an effective intellectual property plan. If you feel that a plan could help your business avoid liability, feel free to contact an attorney at MacElree Harvey, Ltd. today.

COULD YOUR SOCIAL MEDIA STRATEGY GET YOU SUED?

Andrew R. Silverman is an attorney in MacElree Harvey’s Litigation Department. Prior to joining MacElree Harvey, Andy practiced law with a national commercial and products liability firm where he acted as assistant national coordinating counsel for various Fortune 500 clients in defense of a variety of lawsuits.

NOT ALL DEBTS ARE CREATED EQUAL

Litigation frequently results when one business owes another business money and, for one reason or another, either refuses or is unable to pay the debt.

A collections action—as these lawsuits are frequently termed—can be frustrating for the business to which money is owed for a variety of reasons. They are lengthy and expensive, and, in Pennsylvania, attorneys’ fees are recoverable only in limited circumstances, such as where a contract specifically permits the recovery of attorneys’ fees or where a statute specifically authorizes a court to award them. Furthermore, collecting and enforcing a judgment once obtained can be as time-consuming as obtaining the judgment in the first place, since, as we all know, a failing business often owes money to more than one creditor.

Luckily for sellers of fruits and vegetables, the United States Congress has determined that their product is worthy of special treatment. In consideration of the perishable nature of the product and the ripe environment for unscrupulous merchants and buyers, Congress enacted the Perishable Agricultural Commodities Act of 1930 (“PACA”), and has amended the Act several times to deal with (among other things), misbranding, misrepresentation, bankruptcy, and, perhaps most importantly, delayed payment or non-payment.

In short, PACA promotes fair trading practices in the fruit and vegetable industry by regulating commerce and promoting fair trade and prompt payment.

Brokers, growers’ agents, shippers, wholesale dealers, retailers, processors, and commissioned merchants must have a PACA license in order to take advantage of PACA protections. Growers dealing only their own products are exempt from PACA licensing requirements.

PACA protections are not limited to “collections actions” within the fruit and vegetable industry; however, PACA provisions promoting prompt payment are among those most frequently invoked by fruit and vegetable merchants.

Under PACA, a fruit or vegetable merchant who has not been paid by a buyer may seek an administrative remedy by filing a “Reparation Complaint” with the United States Department of Agriculture (USDA) within nine months from the date that payment was due. Alternatively, PACA may be enforced through a court proceeding to enforce a statutory “trust” that PACA

provides for produce sellers. The trust works by placing certain assets of the debtor business (namely, fruit and vegetable inventory, products derived from fruit and vegetables, and all proceeds from the sale of these fruits and vegetables) out of the reach, so to speak, of other creditors. Thus, the trust has the practical effect of giving a produce grower shorted by a buyer a priority over other creditors, making recovery more probable. Recovery is also more likely because bankruptcy generally does not affect PACA trust rights and the owners of the debtor-business can be held personally liable for the debt.

In order to preserve PACA trust rights, a seller must strictly follow PACA notification requirements. First, a seller must provide notification to the buyer of the intention to invoke PACA trust rights within 30 days. Secondly, payment terms other than 10 days must be in writing, and may not exceed 30 days or PACA trust rights are forfeited.

Produce growers and dealers should be cautioned, however, that PACA and the federal regulations enforcing PACA are highly technical, and the failure to follow all of PACA’s provisions and enforcement regulations could result in a waiver of trust rights.

For more information on PACA or other laws and regulations important to commerce and agriculture, contact Charles by email or at 610-840-0265.

Good news for local growers—when you’re owed money, you come first—it’s the law.

J. Charles Gerbron Jr. is an attorney in our Litigation and Land Use Departments. Charlie counsels and advises clients on litigation, land use, and zoning matters. Having appeared in Federal Court and in the Courts of Common Pleas of Berks, Bucks, Chester, Delaware, Montgomery and Philadelphia counties, Charlie has a broad-range of experience representing businesses, developers, and individuals.

PACA: How the Law Supports Local Growers

As one of the largest firms in Pennsylvania, it’s no surprise our attorneys are constantly making news. Here are a few recent highlights. Be sure to check out our News & Events section online to stay up to date. And don’t forget to friend, follow and like us on social media for instant updates at your fingertips.

IN THE NEWSHeaded by partner W. Patrick Scott, MacElree Harvey’s Business Department represented DNB First National Association in the development, negotiation and documentation of the complex commercial loan transaction with 2303 Bainbridge Street, LLC. This closing will allow local developer Stephen Rodriguez to begin construction of the new four-story GREEN building at a currently vacant triangular lot at the intersection of Bainbridge St., 24th St., and Grays Ferry Ave. in the Philadelphia Graduate Hospital District -an architecturally significant change from the surrounding buildings.

MACELREE HARVEY AND DNB FIRST NATIONAL ASSOCIATION PARTNER TO CHANGE THE PHILADELPHIA SKYLINE.

Suburban Life Magazine has named 14 of our attorneys “Awesome Attorneys.” Each year, readers visit the Suburban Life website to cast their votes on the best attorneys practicing in Bucks, Chester, Delaware and Montgomery counties, as well as Philadelphia. According to Suburban Life, “We asked readers to share their opinions on which attorneys excel in various areas of practice-from antitrust to zoning, and everything in between-and they did not disappoint. Hundreds of readers cast votes to help compile a definitive list of attorneys to turn to for help and guidance when they need it most.”

SUBURBAN LIFE NAMES 14 OF OUR ATTORNEYS AWESOME.

MacElree Harvey has been listed as one of Pennsylvania’s Largest 100 Legal Firms by The Legal Intelligencer in the recently released 2014 PaLaw Annual Report on the Legal Profession.

This distinction places MacElree Harvey, Ltd. among other major firms in the Philadelphia area. Ranking Pennsylvania law firms in a number of areas, including size, rate of growth, number of diverse and female attorneys as well as by the value of the settlements in which Pennsylvania firms played key roles, the supplement was published December 9, 2014.

Read the entire 2014 PaLaw report here.

MACELREE HARVEY NAMED ONE OF THE LARGEST FIRMS IN THE KEYSTONE STATE.

COMMUNITY UPDATE We’re excited to announce that we’ve partnered with

Historic Kennett Square to bring you community events all year long. First up? We’re the exclusive sponsor of this year’s Winterfest. Check Historic Kennett out online at historickennettsquare.com for more information.

We’ll see you there—all year long!

A look at where we’ve been, and where you can find us in the local area.

MacElree Harvey is a full service law firm with offices located in West Chester and Kennett Square, PA and Centreville, DE. Providing Initiative in the practice of law for more than 135 years, MacElree Harvey serves clients in over thirty areas of law and is committed to providing clients with the depth of expertise and the resources expected of large firms without sacrificing the responsiveness and personal attention typically found in much smaller firms. To learn more about the firm, please visit www.macelree.com.

MACELREE HARVEY, LTD. | ATTORNEYS AT LAW | MACELREE.COM

We’re sponsoring The Gilbert and Sullivan Society of Chester County’s performances of The Yeoman of the Guard this year. You can get tickets for the shows online and at the door. Jan 29 - Feb 1; Madeleine Wing Adler Theatre Swope Music Building and Performing Arts Center West Chester University 817 S. High Street West Chester, PA 19383. www.gsscc.com.


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