Robert L. Byer

Practice Details

• Firm Information
  Position

  Partner

  Firm Name

  Duane Morris LLP
• Representative Cases & Transactions
  Cases

  Representative Matters: Secured summary judgment, affirmed by the Pennsylvania Supreme Court, for Acme Markets Inc., directing $4.15 million in lottery ticket winnings to ACME in a conversion suit concerning an employee who had taken a Pennsylvania Lottery Match 6 Lotto ticket after determining it was a winner.
  Represented Sunoco Pipeline, L.P. as appellee before the Pennsylvania Commonwealth Court in a dispute with the County of Chester, Pennsylvania. After defeating the plaintiffs' request for a preliminary injunction enjoining construction of the Mariner East 2 Pipeline project on county library property, the county appealed, contending that Sunoco Pipeline was required to secure county permission before changing the construction methodology from horizontal directional drilling to open trench installation
  the Commonwealth Court unanimously affirmed the denial of the preliminary injunction.
  Mortimer v. McCool, 37 & 38 MAP 2020 (Pa. Supreme Court) (pending) - represent the U.S. Chamber of Commerce, Pennsylvania Chamber of Business & Industry, National Federation of Independent Business, Pennsylvania Coalition for Civil Justice Reform, Pennsylvania Medical Society, Pennsylvania Manufacturers' Association, UPMC,
  Marcellus Shale Coalition as amici curiae in an appeal before the Pennsylvania Supreme Court, arguing that the Court should not adopt the enterprise or single entity theories of piercing the corporate veil.
  Represented Ameron International Corporation, a manufacturer of products for the chemical, industrial, energy
  transportation industries, in a case of first impression concerning the application of Tennessee's statutory cap on damages for noneconomic loss, successfully arguing that the cap had to be applied to reduce the gross amount of damages before allocating percentage shares of the award to various tortfeasors.
  Submitted an amicus curiae brief pro bono to the Supreme Court of the United States on behalf of the Conference of Chief Justices, representing chief justices of the courts of last resort in all 50 states
  the brief argued that Delaware should be afforded considerable deference in deciding how to select justices of its courts, in a case concerning whether the state's constitutional requirement, that no more than a bare majority of three justices be from one major political party, violates the First Amendment.
  Representing PrimeCare Medical Inc., a provider of medical services for correctional institutions, in its challenge to an $11.9 million jury verdict on civil rights
  negligence claims arising from an inmate's death by suicide.
  Won an appeal for Ford Motor Company in the Superior Court of Pennsylvania, affirming summary judgment in a product liability case in which the plaintiff contended that Ford was liable for its English subsidiary's products under the apparent manufacturer doctrine
  the piercing the corporate veil theory.
  Obtained 2014 order from the Supreme Court of Pennsylvania summarily affirming an order in favor of the statutory liquidator of an insurance company barring coverage for a multi-million dollar racial discrimination jury verdict.
  Obtained on behalf of an automobile manufacturer, in a significant asbestos-related appeal before the Superior Court of Pennsylvania, a reversal of an order granting a mistrial
  the reinstatement of a judgment following a defense verdict after a jury trial in the Philadelphia Court of Common Pleas.
  Obtained a precedential decision from the U.S. Court of Appeals for the Third Circuit confirming the proper test for taxpayer residency in the U.S. Virgin Isl
  s
  reversing the district court's finding after a nonjury trial that several taxpayers had failed to establish Virgin Isl
  s residency. Vento v. Dir. V.I. Bureau of Internal Revenue, __ F.3d __, 2013 U.S. App. LEXIS 7701 (3d Cir. 2013).
  Obtained a reversal from the Pennsylvania Supreme Court of an intermediate Appellate decision dismissing on procedural grounds an appeal from an $18.5 million judgment. Newman Development Group of Pottstown v. Genuardi's Family Markets, Inc., ___ Pa. ___, ___ A.3d ___, 2012 Pa. LEXIS 2262 (Sept. 28, 2012) - briefed
  argued.
  Federal Circuit upheld a lower court ruling that client's carrying cases for tools did not infringe appellant's patents. Outside the Box Innovations, LLC v. Travel Caddy, Inc., ___ F.3d ___ (Fed. Cir. Sept. 21, 2012) - briefed.
  Represented real estate developers in a successful appeal, reversing a trial court decision denying a municipality's request to sell public l
  to developers under Pennsylvania's Donated
  Dedicated Property Act. Borough of Downingtown v. Friends of Kardon Park, ___ A.3d ___, 2012 Pa. Commw. LEXIS 236 (Pa. Cmwlth. Aug. 3, 2012) (en banc) - briefed
  argued.
  Represent a generic drug manufacturer in appeals to the Pennsylvania Supreme
  Superior courts in support of the manufacturer's preemption defense under Pliva v. Mensing to state-law suits.
  Obtained on behalf of a multinational corporation headquartered in Pittsburgh
  two related entities a decision from U.S. District Court for the Western District of Pennsylvania denying the plaintiff's motion to dismiss the client's counterclaim challenging the validity of plaintiff's patent in an action in which plaintiff alleged that the client had used his idea for condiment packaging without compensating him.
  Obtained an order from the U.S. District Court for the Eastern District of Michigan that transferred an action for breach of implied contract
  unjust enrichment brought against a multinational corporation headquartered in Pittsburgh
  two related entities to the U.S. District Court for the Western District of Pennsylvania on the basis of improper venue.
  Obtained a decision from the U.S. Court of Appeals for the Third Circuit affirming a district court decision made pursuant to the Foreign Sovereign Immunities Act that refused to confirm an arbitration award that had been entered against the client, a bank owned by the government of Brazil.
  Obtained a decision from the Superior Court of Pennsylvania affirming a judgment of $1.95 million, plus attorneys' fees, in favor of a leading manufacturer for the solid-wood processing industry in a third-party indemnity action against an injured party's employer arising from the settlement of a products liability case.
  Represented a corporation, as respondent, in an appeal to the U.S. Supreme Court in a case arising from the corporation efforts to recover under a business-interruption policy. The case established the significant precedent that a party who moves for dismissal on the basis of lack of personal jurisdiction is required to submit to discovery on the jurisdictional questions,
  that personal jurisdiction can be imposed as a discovery sanction as a result of that party's failure to comply with discovery orders. Insurance Corp. of Irel
  v. Companies des Bauxite de Guinee, 456 U.S. 694 (1982).
  Represented the defendant-appellant in an appeal to the Court of Appeals of Maryl
  in a suit brought pursuant to the Maryl
  Consumer Protection Act. The case established as a matter of first impression that damages for noneconomic loss could not be awarded under the act, resulting in the reversal of that portion of the damages award that compensated for noneconomic loss
  a significant punitive damages award that had been based on the compensatory damages award. Hoffman v. Stamper, 385 Md. 1, 867 A.2d 276 (2005).
  Represented Ernst & Young LLP in an appeal to the Pennsylvania Superior Court from a $103 million nonjury verdict in an action alleging malpractice
  negligent misrepresentation. Obtained complete reversal of the verdict
  a new trial. Appellate court determined that the trial court, in deeming Ernst & Young to have admitted all of the requests for admissions submitted by plaintiffs' counsel, imposed a discovery sanction that was completely disproportionate to Ernst & Young's discovery infraction. Reilly v. Ernst & Young LLP, 929 A.2d 1193 (Pa. Super. 2007) (en banc).
  Represented a stock brokerage firm in an appeal to the Pennsylvania Superior Court from a trial court order denying the plaintiffs' motion to modify or correct an arbitration award. The superior court held as a matter of first impression under Pennsylvania law that the three-month time limit for challenging arbitration awards under the Federal Arbitration Act does not apply where the arbitration award is challenged in a state court
  rather, such actions are governed by the 30-day time limit under Pennsylvania law. Joseph v. Advest, Inc., 906 A.2d 1205 (Pa. Super. 2006).
  Represented the independent directors of a publicly held corporation in cross-appeals to the Pennsylvania Superior Court of a preliminary injunction order entered in shareholder-derivative
  equity actions arising from a corporate governance dispute. The opinion contains significant holdings that resolve several matters of first impression under Pennsylvania law regarding the duties of independent directors
  the extent to which a voting trust agreement among shareholders can bind a shareholder with respect to his role as a director. Anchel v. Shea, 762 A.2d 346 (Pa. Super. 2000).
  Represented the Pennsylvania Department of Banking in an action to preclude a Delaware-incorporated payday lender from charging Pennsylvania borrowers monthly participation fees. Obtained decision from Pennsylvania Commonwealth Court that the fees violated Pennsylvania's Consumer Discount Company Act
  Loan Interest
  Protection Law
  a permanent injunction barring the lender from imposing the fees in Pennsylvania. Represented the department in the lender's appeal to Pennsylvania Supreme Court, which affirmed the commonwealth court's decision. Pennsylvania Department of Banking v. NCAS of Delaware, LLC, 931 A.2d 771 (Pa. Commw. 2007), aff'd, 995 A.2d 422 (Pa. 2010).
  Represented the University of Pittsburgh in an appeal from a decision by the Department of Labor
  Industry allowing a professor to inspect letters written by outside evaluators that were contained in his personnel file. A majority of an en banc Commonwealth Court panel reversed, determining that the letters constituted letters of reference that are not subject to inspection under Pennsylvania's Personnel Files Act. University of Pittsburgh of the Commonwealth System of Higher Education v. Department of Labor & Industry, 896 A.2d 683 (Pa. Commw. 2006) (en banc).
  Represented a company that had purchased property located in a Keystone Opportunity Zone in its appeal from a trial court decision that it owed certain payments in lieu of taxes to an area school district. The Commonwealth Court reversed, holding as a matter of law that the business was not liable for the payments because they were the equivalent of real property taxes
  thus were imposed in contravention of the Keystone Opportunity Zone Act. School District of the City of Monessen v. Farnham & Pfile Co., Inc., 878 A.2d 142 (Pa. Commw. 2005).
  Represented a Canadian clothing manufacturer in an appeal to the U.S. Court of Appeals for the District of Columbia Circuit from the dismissal of a competing Danish clothing manufacturer action opposing our client's registration of the trademark Jack & Jones. The D.C. Circuit determined that under Section 2(d) of the Lanham Act, an applicant who registered on the basis of intent to use has priority over a subsequent applicant that attempts to register a foreign mark that was in actual use before the filing of the intent-to-use application, where the foreign user did not attempt to register the mark in the United States within six months of actual use. Aktieselskabet AF 21 v. Fame Jeans, Inc., 525 F.3d 8 (D.C. Cir. 2008).
  Represented an online provider of professional development courses for K-12 teachers in appeal to the U.S. Court of Appeals from the Third Circuit from a decision dismissing a wrongful-discharge
  wage-loss action brought by a former part-time teaching assistant. The court upheld the district court's decision to give preclusive effect to a state court's determination that the plaintiff was not an employee, which led to the district court's conclusion that the plaintiff could not maintain a claim for wrongful discharge
  wage loss. Spyridakis v. The Riesling Group, No. 09-4315, 398 Fed. Appx. 793, 2010 U.S. App. LEXIS 20415 (3d Cir. Oct 1, 2010).
  Represented a bank in appeal to the U.S. Court of Appeals for the Third Circuit from a district court's decision dismissing the plaintiff's action under the Truth in Lending Act (TILA) as untimely. The appeals court agreed that the action was time-barred because the plaintiff did not file suit within one year of mortgage closing. It further determined that the plaintiff could not avail himself of the TILA's rescission provision because the mortgage was for an investment property, rather that the plaintiff's primary dwelling,
  the action was filed more than three years after the closing. Taggart v. Chase Bank USA, N.A., 375 Fed. Appx. 266 (3d Cir. 2010).
  Represented Ernst & Young in obtaining a decision from the U.S. Bankruptcy Court for the Western District of Pennsylvania that enjoined the plaintiffs from pursuing their state court action for malpractice
  fraud. The bankruptcy court concluded that because the plaintiffs' state court claims amounted to a collateral attack on its orders confirming the plan of reorganization
  approving Ernst & Young's fees, the injunction was an authorized exception to the Anti-injunction Act. Obtained orders from the district court
  the U.S. Court of Appeals for the Third Circuit summarily affirming the bankruptcy court's order. Ernst & Young, LLP v. Reilly (In re Earned Capital Corp.), 393 B.R. 362 (Bankr. W.D. Pa. 2008), aff'd, No. 08-1349, slip op. (W.D. Pa. 2009), aff'd, No. 09-2845, summary order (3d Cir. 2009).
  Represented Lyle & Scott Limited in an appeal to the U.S. Court of Appeals for the Third Circuit of a decision that granted summary judgment for American Eagle on its action to enforce an agreement regarding the parties' use of similar trademarks in their respective clothing lines. The Third Circuit agreed that the agreement was enforceable but determined that the district court erred in construing the terms of the agreement in favor of American Eagle
  the appellate court held that the terms were sufficiently ambiguous to warrant additional fact-finding by a jury. American Eagle Outfitters, Inc. v. Lyle & Scott Ltd., 584 F.3d 575 (3d Cir. 2009).
  Represented an authorized dealer of Mack Trucks in appeal to the U.S. Court of Appeals for the Third Circuit from a district court decision granting a directed verdict in favor of Mack Trucks on the dealer's claim under section 1 of the Sherman Antitrust Act. The Third Circuit reversed, holding that the dealer presented enough evidence at trial of anticompetitive conduct under a rule-of-reason analysis to allow the Sherman Act conspiracy claim to go to a jury. Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 530 F.3d 204 (3d Cir. 2008).
  Represented a purchaser of tax liens in an appeal by plaintiff property owners to the U.S. Court of Appeals for the Third Circuit from a district court decision holding that under Pennsylvania state law, government entities could assign delinquent municipal tax
  utility claims to the purchaser for collection. The Third Circuit affirmed, determining that the liens were assignable under Pennsylvania's Municipal Claims
  Tax Lien Law
  that the purchaser was therefore entitled to collect interest
  penalties on the assigned claims to the same extent as the government entities that assigned the claims. Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000).
  Represented Columbia Pictures in an appeal by a video-store operator to the U.S. Court of Appeals for the Third Circuit from a district court decision that the video-store operator had engaged in public performances of copyrighted motion pictures, thereby infringing the copyrights, by allowing patrons to view the motion pictures on video cassettes in small, private rooms on its premises. The Third Circuit affirmed, concluding that defendants' activities constituted an unauthorized public performance of copyrighted movies
  that the individual defendants,
  an advertising agency, could each be held jointly
  severally liable for the infringement. Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984).
  Represented Columbia Pictures in appeal to the U.S. Court of Appeals for the Third Circuit from a district court decision dismissing antitrust claims asserted by a video store operator that showed movies on its premises. The Third Circuit affirmed, holding that under the principle of claim preclusion, the video store operator was barred from asserting the antitrust claims because, in a prior copyright action, its counterclaim for copyright abuse had been dismissed on the merits. Maxwell's Video Showcase, Ltd. v. Columbia Pictures Industries, Inc., 806 F.2d 253 (3d Cir. 1986) (unpublished decision).
  Represented a self-storage company in an appeal to the U.S. Court of Appeals for the Fifth Circuit from a district court decision dismissing its claims for service mark infringement, copyright infringement
  trade dress infringement against a competing self-storage facility for its use of a star symbol on its buildings. The Fifth Circuit reversed in part, holding that although the star symbol was not inherently distinctive
  thus not legally protectable as a mark, that conclusion was not dispositive of the client's claims for copyright
  trade dress infringement,
  that the district court erred in dismissing those claims. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225 (5th Cir. 2010).
  Represented a developer of simulators of remotely operated vehicles in an appeal to the U.S. Court of Appeal for the Fifth Circuit from a district court decision granting a competing company's cross-motion for summary judgment of copyright infringement
  unfair competition. The Fifth Circuit vacated
  rem
  ed, finding that the client's competitor failed to demonstrate it was entitled to judgment as a matter of law on any count of the complaint. Oceaneering International, Inc. v. GRI Simulations, Inc., 332 Fed. Appx. 164, 91 U.S.P.Q.2d 1382 (5th Cir. 2009).
  Represented a law firm
  one of its attorneys in an appeal to the Pennsylvania Superior Court from a trial court order enforcing a settlement agreement. The Superior Court affirmed, rejecting the plaintiffs' assertion that an out-of-state collection to attach the settlement proceeds brought by plaintiffs' creditors invalidated the settlement agreement. Step Plan Services, Inc. v. Koresko, 12 A.3d 401 (Pa. Super. 2010).
  Represented the Pennsylvania Department of Revenue in an action by GTECH Corporation to set aside the department's award of a contract to Scientific Games International, Inc. (SGI) to provide terminal-based games for the Pennsylvania Lottery. The Pennsylvania Commonwealth Court sustained the department's preliminary objections to GTECH's substantive challenges to the department's selection of SGI, determining that it lacked subject-matter jurisdiction to hear those claims. GTECH Corp. v. Commonwealth of Pennsylvania, Dept. of Revenue, 965 A.2d 1276 (Pa. Commw. 2009).
  Represented the petitioner in an appeal to the Pennsylvania Commonwealth Court from a State Ethics Commission finding that petitioner violated Pennsylvania's Public Official
  Employee Ethics Act based upon his failure to file a timely answer to the commission's investigative complaint. The Commonwealth Court vacated
  rem
  ed, holding that the commission had discretion to extend the filing deadline for good cause shown,
  that petitioner had shown good cause for the late filing. Eathorne v. State Ethics Commission, 960 A.2d 206 (Pa. Commw. 2008).
  Obtained decision from the U.S. District Court for the Western District of Pennsylvania that during the period in which the defendant club paid its dining-room employees in excess of the minimum wage
  therefore did not claim a tip credit pursuant to section 3(m) of the Fair Labor St
  ards Act, 29 U.S.C. 203(m), it could not, as a matter of law, be held liable for pooling employees' tips
  distributing them to employees who do not customarily
  regularly receive tips. Platek v. Duquesne Club, 961 F. Supp. 831 (W.D. Pa. 1994), aff'd without opinion, 107 F.3d 863 (3d Cir.), cert. denied, 522 U.S. 934 (1997).
  Represented a developer in a matter on rem
  from the Pennsylvania Supreme Court. Obtained a decision on the merits from the Pennsylvania Commonwealth Court that reversed a trial court decision to reverse a zoning board's approval of a tentative sketch application submitted by the developer. Narberth Borough v. Lower Merion Township, 950 A.2d 398 (Pa. Commw. 2008) (unpublished opinion).
  Represented Allegheny Energy Supply Co. in the third of a series of appeals to the Pennsylvania Commonwealth Court from the valuation of a power plant. The court held that the trial court properly excluded the power plant's control room
  heater bay from local tax assessment pursuant to Pennsylvania's Fourth to Eighth Class County Assessment Law because they were integral to the industrial process of generating electricity. Allegheny Energy Supply Co. LLC v. County of Greene, 869 A.2d 31 (Pa. Commw. 2005) (en banc).
  Represented as lead counsel the Association of Corporate Counsel, the U.S. Chamber of Commerce, the Pennsylvania Bar Association
  the Philadelphia Bar Association, as amici curiae, in an appeal to the Pennsylvania Supreme Court in which the court, quoting extensively from the amicus brief, held that the attorney-client privilege protects communications made by attorneys to clients as well as communications made by clients to attorneys. In so holding, the court reversed a line of intermediate appellate decisions that held to the contrary. Gillard v. AIG Insurance Co., 15 A.3d 44 (Pa. 2011).
  Obtained decision from Pennsylvania Supreme Court that the each
  every breath theory of causation lacks general acceptance under Frye in Betz v. Pneumo Abex.
  Counsel to Travelers Insurance in a cross-appeal to the U.S. Court of Appeals for the Third Circuit resulting in a favorable reversal on the issue of coverage under a legal malpractice policy
  affirmance on the issue of bad faith. Post v. St. Paul Travelers Insurance Co., 691 F.3d 500 (3d Cir. 2012).
  Represented H.J. Heinz Co. in a suit alleging that Heinz misappropriated plaintiff's ideas
  infringed on plaintiff's copyright by creating a top-side-down condiment bottle. The U.S. District Court for the Western District of Pennsylvania granted Heinz' motion to dismiss, holding that the Heinz waiver agreement for unsolicited ideas precluded plaintiff's misappropriation claim,
  that plaintiff could not maintain a copyright infringement action with respect to a drawing that plaintiff had included as part of a patent application. Riordan v. H.J. Heinz Co., 2009 U.S. Dist. LEXIS 70713 (W.D. Pa. Aug. 12, 2009)
  2009 U.S. Dist. LEXIS 114165 (W.D. Pa. Dec. 8, 2009).
  Represented Epsilon Interactive LLC, formerly Bigfoot Interactive, Inc., as appellee, in an appeal to the U.S. Court of Appeals for the Federal Circuit from an order granting it a summary judgment of non-infringement of an Internet-based business-method patent directed to a method for sending email
  tracking whether the recipient opened the email. The court summarily affirmed after oral argument. Digital Impact, Inc. v. Bigfoot Interactive, Inc., 315 Fed. Appx. 293 (Fed. Cir. 2009).