Two weeks after Philadelphia personal injury firm Lundy Law dropped its federal trademark suit against Philadelphia-based injury firm Larry Pitt & Associates, Pitt’s firm has sued Lundy Law and its principal, L. Leonard Lundy, in federal court alleging unfair competition and violations of the Sherman Antitrust Act.
The complaint, filed May 2 in the U.S. District Court for the Eastern District of Pennsylvania, alleges Lundy Law has entered into contracts that give the firm exclusive rights to advertise on the exteriors of Southeastern Pennsylvania Transportation Authority and Berks Area Regional Transportation Authority buses.
According to the complaint, these contracts have foreclosed Pitt & Associates from renewing its own contracts for exterior bus advertisements, which are considered to be among "the most effective forms of advertising for legal services for small personal injury, Social Security disability and workers’ compensation law firms to use in order to achieve name recognition."
"Specifically, when plaintiff Pitt Law attempted to renew its contract for the highly coveted advertisements on the exterior of SEPTA buses, it was informed that defendant Lundy’s advertising contract with SEPTA prevented SEPTA from contracting with any other legal service providers for advertising anywhere on the exterior of buses, for at least one year, with unlimited one-year renewal options," the complaint alleges, adding that Pitt & Associates received the same response when it tried to renew its contract with BARTA.
Similarly, the complaint alleges Pitt & Associates was unable to secure a contract with Comcast SportsNet to advertise during sporting events because Lundy Law’s contract precluded the company from entering into agreements with any other legal service provider for advertising during games for at least one year, with unlimited one-year renewal options.
According to the complaint, Pitt & Associates encountered similar roadblocks when it tried to secure contracts to advertise within the Wells Fargo Center and on KYW Newsradio during traffic and weather reports, traffic sponsorships and time checks.
The complaint alleges Leonard Lundy was personally involved in negotiating these contracts.
"Access to these media outlets and their premium advertising is an essential facility needed to effectively compete in the market for the advertising of legal services by such small personal injury, Social Security disability and workers’ compensation law firms in the relevant geographic market," the complaint said.
According to the complaint, Lundy Law has billed itself since May 2011 as "’the predominant advertiser of personal injury services.’"
"For at least the past year, defendant Lundy has engaged in a predatory campaign to eliminate competition from Pitt Law and other small personal injury, Social Security disability and workers’ compensation law firms and to harm Pitt Law as a direct competitor," the complaint alleges, adding that Lundy "makes large, economically unjustified payments to media outlets that are above market prices to induce them to enter into these predatory exclusive contracts."
The complaint also cites as an example of additional "predatory conduct" the suit Lundy Law filed against Pitt & Associates in March, which had claimed Pitt & Associates’ "Remember This Number" slogan was too close to Lundy Law’s "Remember This Name" slogan.
According to court records, Lundy Law voluntarily dismissed that suit April 18.
In its complaint, Pitt & Associates alleges Lundy Law’s suit had "no good-faith basis in law and fact" and was filed "for anti-competitive purposes."
"Defendant Lundy never presented a single shred of evidence in its case to support its allegation that including in its advertisements an instruction to ‘Remember This Name’ had caused the phrase itself to acquire secondary meaning rendering it protectable under applicable trademark law," the complaint said. "Nor did defendant Lundy present any evidence of actual confusion on the part of consumers, despite the fact that the two phrases had been used concurrently in advertising for nearly a year before defendant Lundy decided to file the trademark lawsuit."
The complaint alleges Lundy Law’s and Lundy’s actions have caused Pitt & Associates to be "severely damaged through lost sales and profits, higher cost and loss of good will and name recognition in the relevant markets."
The complaint alleges Sherman Antitrust Act violations for unlawful monopolization, attempted monopolization, unlawful boycott and unlawful exclusive dealing.
The complaint also includes common-law claims for unfair competition and tortious interference with prospective contract.
According to the complaint, Pitt & Associates is seeking an award of treble damages or, in the alternative, an order requiring Lundy Law to pay Pitt & Associates "all profits realized … as a result of the illegal acts" alleged in the complaint.
Pitt & Associates is also seeking punitive and exemplary damages as well as attorney fees and costs related both to its own suit and Lundy Law’s previous trademark suit, according to the complaint.
Reached late on May 2, Lundy said he hadn’t seen the complaint. A follow-up call Friday morning had not been returned at press time.
Counsel for Pitt & Associates, Carl W. Hittinger of DLA Piper in Philadelphia, declined to comment on the case except to say his client’s arguments are laid out in the complaint.