J. Alexander HersheyJ. Alexander Hershey Clark Hill
J. Alexander Hershey
J. Alexander Hershey assists clients with commercial and legal issues through business planning, negotiations, and litigation. Alex is a member of the Litigation practice group and concentrates his practice in areas of law involving unfair competition and business torts, trade secret and employment law, trademark and copyright infringement, distribution and antitrust issues, insurance and health care law, and related commercial disputes. Alex also assists clients in the registration of trademarks and copyrights and counsels clients regarding contractual, intellectual property, and antitrust issues in business transactions. Alex has experience practicing before numerous state and federal courts and before the United States Patent & Trademark Office.
Alex undertakes a wide range of efforts on behalf of clients, in both counseling and litigation, with respect to unfair competition and commercial issues, including the following.
- Analyzing and litigating contract issues, including with respect to distribution and services contracts, employment and confidentiality agreements, brokerage and consulting agreements, managed care and insurance issues, and franchise and licensing agreements.
- Analyzing and litigating business tort issues concerning unfair competition, trade secrets, fraud, misrepresentation, fiduciary duty, interference with contracts, professional negligence, and defamation.
- Analyzing and litigating trademark, trade dress, and false advertising claims, including issues concerning the acquisition and strength of rights, likelihood of confusion, actual damages and lost profits, and injunctive relief.
- Analyzing and litigating copyright infringement claims, including issues concerning protectable subject matter, authorship, infringement, actual or statutory damages, and injunctive relief.
- Analyzing and counseling clients with respect to the antitrust implications of mergers and acquisitions, distribution and supply arrangements, and health care provider and payor relationships.
- Analyzing and litigating statutory claims, including under the federal Securities Acts, the RICO Act, the Hobbs Act, the federal Mail and Wire Fraud statutes, and the DMCA, CFAA, and ECPA provisions regulating computer access and online issues.
Publications / Presentations
- Presenter, "eDiscovery Symposium – Data Breaches – Privacy and Liability," Pennsylvania Bar Institute, April 17, 2015
- Column, “How the Federalist Papers Relate to Data Breach Legislation,” Pennsylvania Law Weekly of The Legal Intelligencer, April 7, 2015.
- Column, "Chasing Jim Thorpe: Law, Litigation and the Bounds of Advocacy,” Pennsylvania Law Weekly of The Legal Intelligencer, December 23, 2014.
- Column, “Courts Weigh in on the Protection of Software Code,” Pennsylvania Law Weekly of The Legal Intelligencer, October 21, 2014.
- Column, “Supreme Court Diminishes the Role of Prudential Standing,” Pennsylvania Law Weekly of The Legal Intelligencer, July 22, 2014.
- Presenter, “The Role of Computer Forensics in Data Breach Response,” The Cyril H. Wecht Institute of Forensic Science and Law, Duquesne University, March 21, 2014.
- Presenter and Course Planner, “Drafting to Avoid or Win Litigation / Litigating Breach of Contract Actions,” Pennsylvania Bar Institute, July 30, 2013.
- “Affordable Care Act’s Medical Loss Ratio Provision: Is There A Private Right Of Action?” Communiqué, November 2012.
- “Health Plans’ Commercial Uncertainties Persist After Supreme Court’s Decision Upholding the Affordable Care Act’s Constitutionality,” Communiqué, August 2012.
- Presenter, "Trade Secret Theft Is More Common Than You Think: What a Business Needs To Do To Protect Itself," TRA Seminar, March 2012.
- "The Real Dollars At Stake: Don’t Overlook The Value Of Protecting Your Copyrightable Materials," Communiqué, May 2011.
- "E-Commerce: Legal and Practical Issues," Pennsylvania Bar Institute Seminar, December 2010.
- “The Dangers of Being a Team Player: Joint Ventures and the Risk of Antitrust Liability,” Communiqué, May 2010.
- Presenter, Mock Preliminary Injunction Hearing, 25th Annual ABA Intellectual Property Law Conference, April 10, 2010.
- Presenter, "Mitigating Legal Risk in a Recovering Economy," Financial Executives Institute, Pittsburgh Chapter Meeting, Technical Session, April 8, 2010.
- Author, “The Common Law and Secondary Liability: Issues of Culpability and Procedure in Trademark and Copyright Litigation,” ABA Intellectual Property Litigation Committee Newsletter, Vol. 21, No. 2, Winter 2010.
- Presenter, “The Fundamentals for Protecting Your Competitive Edge: Using Intellectual Property Law To Protect Your Company’s Assets And Fend Off Your Competition,” TRA Seminar, March 2010.
- “Third Circuit Decision Provides Guidance as to Protectability and Survey Evidence in Trademark Litigation,” Communiqué, September 2008.
- Moderator, Local Rule 56.1 - The Judges Speak Out, The Federal Court Section Council of the Allegheny County Bar Association, April 24, 2008.
- "A Victory for Antitrust Plaintiffs: The Third Circuit Issues a Decision Limiting the Plaintiff’s Burden in Robinson-Patman Act Claims," Communique, October 2007.
- "Are Your Secrets Confidential, and Will a Court Agree?" In Your Court, November 2005.
- "Supreme Court: Proof of Absence of Confusion is Not Good Faith Defense to Trademark Infringement," In Your Court, March 2005.
- “What’s New In Pennsylvania: The Pennsylvania Supreme Court Creates An Open Season On Architects And Other Design Professionals,” Construction Law News, March 2005.
- “Full and Accurate Disclosure: Protecting the Rights of Businesses to Commercial Information,” In Your Court, March 2005.
- "The Pennsylvania Supreme Court Partially Solidifies the Claim of Negligent Misrepresentation Under Pennsylvania Law,” Communiqué, March 2005.
- "Privilege or Justification: The Ever-Expanding Policy Prong of Tortious Interference With Contract," Business Torts Journal, Fall 2004.
- "Broad Reality, Narrow Words," 67 George Washington Law Review 432, 1999.
Licensing and Contract Disputes
- Successful defense at jury trial and on appeal of contract, fiduciary duty, and related claims between investment advisory and the estate of a former partner therein, in which the plaintiff asserted in excess of $5,000,000 in damages. Davies v. Veenis, et al., GD-08-003019 (Allegheny County, Pa.).
- Favorable litigation and resolution as lead trial counsel of multimillion dollar claims and counterclaims in arbitration proceedings concerning the terms of licensing and distribution agreements between the developing licensor and a distributor of a medical device. (Confidential Proceedings 2013).
- Favorable litigation as lead trial counsel in resolution of highly contested discovery and arbitration proceedings between national railroad carrier and shortline railroad concerning terms of switching and interchange agreements. (Confidential Proceedings 2012).
- Litigation and resolution as trial counsel of an action to enforce restrictive covenants governing the use of a cultural center developed with public funds and charitable contributions. In re The August Wilson Center for African American Culture, Orphan’s Division Case No. 6380 of 2013 (Allegheny County, Pa.).
- Litigation and resolution as co-lead counsel of claims concerning breach of services and software supply agreements between software reseller and purchaser. Sarris Candies, Inc. v. Allin Consulting of Pennsylvania, Inc., GD-07-016464 (Allegheny County, Pa.).
-Litigation and resolution as lead counsel of claims concerning breach of services and software supply agreements between software reseller and purchaser. IPEG, Inc. v. EAC Product Development Solutions, Inc., 2:14-cv-00319-LPL (W.D. Pa.).
-Litigation and resolution as lead counsel of claims concerning breach of services and software distribution agreements between software developer and purchaser. IPEG, Inc. v. Cincom Systems, Inc., 2:13-cv-01820-JFC (W.D. Pa.).
-Favorable litigation as lead trial counsel in resolution of discovery and arbitration proceedings between supplier of resin in the automotive industry and a fabricator of automotive parts. (Confidential Proceedings 2010).
- Favorable litigation as trial counsel in resolution of highly contested discovery and arbitration proceedings between seller of a specialty steel production company and an equity broker involved in the sale of the business to a multi-national steel producer, in which the claimant asserted in excess of $5,000,000 in damages. (Confidential Proceedings 2009).
-Substituted as trial counsel and negotiated a resolution in highly contested litigation concerning the design and performance of a tool steel holding furnace. Latrobe Steel Company v. Ajax Tocco Magnethermic Corporation v. Core Furnace Systems Corporation, Case No. 4:07-cv-01533 (N.D. Ohio).
Intellectual Property and Unfair Competition Disputes
- Litigation and resolution as lead plaintiff’s counsel of an action to enforce a non-compete and confidentiality agreement. Absolute Capital Management, LLC v. Jenco, 2:15-cv-00343-NBF (W.D. Pa.).
- Lead counsel in litigation and resolution of copyright, trademark, and unfair competition claims brought between competing designers of jewelry. Sabika, Inc. v. Manfred, Case 2:13-cv-00091-TFM (W.D. Pa.).
- Lead counsel in litigation and resolution of numerous cases of trademark infringement and unfair competition brought on behalf of an online retailer of flags and other consumer products. See, e.g., Online Stores, Inc. v. Allied Products Corporation, 2:09-cv-00837-TFM-ARH (W.D. Pa.).
- Lead counsel in litigation and resolution of trade secret, unfair competition, and breach of non-compete claims brought on behalf of dealers of pre-engineered steel buildings. Universal Steel Buildings Corp. and SDD Enterprises Corporation vs. Shawn Cortner, Donald Gilmore, et al., Case No. G.D. No. 10-003792 (Allegheny County).
- Lead counsel in litigation and resolution of copyright, trademark, trade secret, and unfair competition claims brought between competing providers of organizational and management consulting services. Partners In Leadership Inc., et al., v. Questmark LLC, et al., 2:10-cv-00124-JFC (W.D. Pa.).
- Lead counsel in litigation and resolution of numerous cases of trademark infringement and unfair competition brought on behalf of a manufacturers and dealers of pre-engineered steel buildings. Universal Steel Buildings Corp., et al. v. Shore Corp. One, 2:09-cv-00656-GLL (W.D. Pa.); 1994 Steel Factory Corporation, et al. v. Crown International Steel Buildings Systems Corporation, et al., 2:07-cv-00169-JFC-ARH (W.D. Pa.).
- Litigated and successfully resolved unfair competition claims between competing water filtration retailers. Budget Water International, Inc. v. Expert Water Solutions, Inc., et al., 2:07-cv-00037-DWA (W.D. Pa.).
- Lead counsel in litigation and resolution of trademark infringement and unfair competition claims brought between competing restaurant franchisors. Unique Pizza And Subs Corporation v. Pick Up Stix, Inc., 2:07-cv-01066-NBF (W.D. Pa.).
- Successful enforcement of non-compete provisions through hearings on preliminary injunction and subsequent negotiated resolution. ATM Corporation, et al. v. Rayle, et al., 2:03-cv-00890-GLL (W. D. Pa.).
Fiduciary Duty and Business Tort Disputes
- Favorable design, administration, and negotiation of binding alternative dispute resolution process to resolve numerous individual and class securities fraud proceedings against outside counsel to issuer, in which the plaintiffs asserted in excess of $4 billion in losses. In re Adelphia Communications Corporation Securities & Derivative Litigation, 03-MD-1529 (S.D.N.Y.).
- Favorable resolution and settlement of class action claims for fiduciary breach, alter ego liability, and WARN Act violations against former management of bankrupt manufacturing entity, in which the claimants asserted in excess of $16 million in total damages. Schwab (Trustee) v. Excel Capital Partners, LLC, et al., 5:11-ap-308-RNO (Bankr. M.D. Pa).
- Secured summary judgment dismissing commercial product liability claims concerning the performance and failure of a broadcast antenna. Vigilant Insurance Company v. SPX Corporation, 2:06-cv-00023-LPL (W.D. Pa.).
- Secured the dismissal of a default judgment of over $4,000,000 on Foreign Sovereign Immunities Act and personal jurisdiction grounds, which was affirmed on appeal. Silverman v. China National Native Produce and Animal By-Products Import and Export Corp., et al., Civ. Act. Nos. 10639-1995, 10379-06, 10723-06 (Lawrence County, Pa.) and 1000 WDA 2009 (Pa. Super. Ct.).
Insurance and Managed Care Disputes
- Lead trial counsel in defense of claims of bad faith insurance practices on behalf of American General Life Insurance Company. Mohney v. American General Life Insurance Company, 1995-0764 Civil (Armstrong County, Pa.).
- Secured the dismissal of class action provider claims against Blue Cross/Blue Shield plans seeking the direct payment of out-of-network reimbursements, which dismissal was affirmed on appeal. Ambulance Assoc. of Pa., et al. v. Highmark Inc., et al., 2:10-cv-202 (W.D. Pa.), 11-2763 (3d Cir.).
- Litigated and successfully resolved individual and class action provider claims against a Medicaid managed care organization for payment of out-of-network reimbursements. Mutual Aid Ambulance Service, Inc. v. Unison Health Plan of Pennsylvania, Inc., GD-02-004077 (Allegheny County, Pa.); Tristate Emergency Systems v. Unison Health Plan of Pennsylvania, Inc., No. GD-06-018902 (Allegheny County, Pa.).