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Maine’s new business court

                  William J Kayatta Jr
                  Pierce Atwood

Maine state courts have long been viewed as providing a relatively            rights of a consumer arising out of transactions or other dealings
reasonable forum for the adjudication of business disputes. The               with a business entity;” and
quality of the judiciary is quite high; punitive damages are not
available in breach of contract disputes, and are otherwise not easily      c) Requires “specialized and differentiated judicial management.”
granted; and most Maine jurors take their responsibilities quite
seriously, tending to focus very much on instructions from the court.          Satisfaction of these criteria does not mean that a case will necessarily
That being said, the lack of a dedicated docket for commercial              be assigned to the BCD. The Court has established “BCD Procedural
disputes, the resulting lack of predictability about judicial               Rules” (attached as Appendix A to the above-cited Administrative Order)
assignments, and the delays incident to managing a large case on a          involving a two-step process. First, there must be a recommendation for
general docket have all combined to diminish the predictability of          transfer to the BCD by a district court judge or superior court justice in
outcomes and increase the delay and costs of a judicial                     the court in which the case is initially filed, either upon application of one
determination.                                                              of the parties, or sua sponte. Second, one of the two BCD judges must
   In order to respond to these problems, the Supreme Judicial Court        accept and approve the transfer of the case to the BCD.
issued Administrative Order JB-07-1, effective June 1, 2007,                   The rules incorporate an opportunity for a party opposing transfer
establishing a “business and consumer docket.” The Order defines the        to the BCD to object, but do not appear to include any opportunity
scope and purpose of the docket as follows:                                 for a party seeking transfer to object to a decision either not to
                                                                            recommend or not to accept and approve transfer.
  The business and consumer docket (BCD) shall be a state-wide                 It is anticipated that the two BCD judges will exercise their ability
  docket comprised of selected actions involving business and/or            to control their docket to allow active case management and relatively
  consumer disputes, and shall be managed by two judges from either         speedy determinations. It is further anticipated that the two BCD
  trial court designated by the Chief Justice of the Supreme Judicial       judges, hearing only BCD cases, will become quite conversant in the
  Court.                                                                    types of business and commercial issues likely to arise in such cases.
                                                                               While the BCD docket will shortly be centered in West Bath District
  The goals of the BCD are to provide predictable judicial action in        Court with an assigned clerk, trial venue will remain in the original
  selected cases involving business and/or consumer disputes, avoid         court, absent agreement otherwise. It is further anticipated that the
  placing unnecessary burdens on the court and the litigants in such        roll-out of the State’s electronic case filing system will commence first
  cases, keep litigation costs reasonable, and promote an effective and     on the BCD docket.
  efficient process for resolving such disputes.                               Maine’s experiment with a designated docket for business cases
                                                                            arises out of a concern that businesses are abandoning the public
   Both pending and newly-filed civil actions qualify for transfer to the   court system as the preferred forum for resolving disputes. Small
BCD. To be considered for the BCD, a lawsuit must meet three                businesses chafe at the cost and delay of the current system. Large
criteria:                                                                   businesses express concern about the ability of courts of general
                                                                            jurisdiction to develop the expertise to understand and simplify
a) Is not a family matter that involves children;                           complex commercial disputes in a predictable manner. The new
                                                                            court’s success will therefore be measured by the extent to which it is
b)Includes a principal claim involving “matters of significance to the      perceived to increase the speed and predictability of judicial
  transactions, operations or governing of a business entity and/or the     resolutions of business disputes.

                                                                   The definitive guide to America’s leading litigation firms and attorneys 153

      Leading litigation firms
      Highly recommended
      Berman & Simmons

      Bernstein Shur                      Litigation in Maine is a local affair for those who want to win. One resident client
      Harvey & Frank                      said: “If you’re not from Maine, you’ll be tagged as an outsider.” Fortunately, the
                                          firms listed here are able to handle complex issues while maintaining
      Pierce Atwood                       independent local character.
      Preti Flaherty Beliveau & Pachios

                                          Highly recommended firms                            Peers singled out Jeffrey Thaler as a
      Eaton Peabody                       Rivals agreed that Berman & Simmons is           “methodical, intelligent trial lawyer.”
                                          “Maine’s top plaintiffs’ firm.” This small       Thaler’s practice includes a wide range of
      Norman Hanson & DeTroy              firm handles litigation across the state in a    general commercial litigation, with a
                                          variety of matters, ranging from products        particular focus in environment and energy
      Rudman & Winchell                   liability and complex commercial cases to        work. He serves as permitting counsel for
                                          work in personal injury and wrongful death       many development projects, and wind and
      Verrill Dana
                                          suits. Competitors respected the firm’s work     hydro power projects. He also served as trial
      Petruccelli Martin & Haddow         in the courtroom, saying “they have a            counsel in a federal accounting case in which
                                          number of top notch litigators.” Recent          a jury awarded his client over $6.6 million.
                                          matters include a $7.8 million jury award on     Other notable matters include a $5 million
                                          behalf of a bottling company competitor of       settlement       concerning        the     design,
                                          Poland Spring. The firm also served as lead      construction and operation of an energy
                                          trial counsel in a class-action lawsuit for      plant. Firm president Peter Rubin received
                                          Maine blueberry growers against blueberry        peer recommendation for his “solid trial
                                          processors. The antitrust suit resulted in a     work.” Rubin handles litigation for Owens-
                                          $56 million award.                               Illinois and also represents IDEXX
                                             Many competitors recommended Steven           Laboratories. Sources noted energy chair
                                          Silin for his products liability and medical     Gordon Grimes for his experience in power
                                          malpractice expertise. “Steve’s a great          plant construction work.
                                          lawyer with a solid reputation,” one peer           When clients hire Harvey & Frank, they
                                          said. Sources also recommended Julian            know they’ll be getting the formidable duo
                                          “Jay” Sweet as a “trial expert.” In 2001,        of Charles “Chuck” Harvey and Robert
                                          Sweet obtained what was then the largest         “Bob” Frank. This two-person firm is a
                                          medical malpractice plaintiff’s verdict in       force in Maine litigation, despite its small
                                          history. He has followed that $9 million         size. The partners hire outside law firms
                                          dollar award with more recent victories,         when necessary, but clients are continually
                                          including a $1.2 million medical malpractice     drawn to this “excellent pair of lawyers.”
                                          award in Washington County. Colleague            Peers agreed that the firm is highly
                                          William “Bill” Robitzek received praise as       competitive for business, and one large firm
                                          an “absolutely superb lawyer.” Robitzek          attorney said that “they are every bit in the
                                          often works in class-action litigation, and      hunt with us for high-stakes work.” Frank
                                          acted as lead counsel in the blueberry           typically works in antitrust and intellectual
                                          antitrust case, as well as for well owners in    property matters, while Harvey focuses on
                                          claims against the manufacturers of methyl       civil litigation, including appellate work.
                                          tert-butyl ether (MTBE), and for                 Representative clients include the Maine
                                          shareholders against the management of           Community College System, the state of
                                          UNUM Provident.                                  Maine, the American Association of Retired
                                             With offices in Maine and New                 Persons, Dexter Shoe Company and Maine
                                          Hampshire, peers said that Bernstein Shur        Health.
                                          can handle a wide range of litigation “clearly      Pierce Atwood is a traditionally dominant

                                          and competently.” Like many Maine firms,         firm in Maine, and peers said its large
                                          environment and toxic tort litigation have       litigation group had “an excellent crew” of
                                          provided opportunities for new work. The         litigators well equipped to handle complex
                                          firm has developed a niche in technology and     litigation. With offices across the state and a
                                          intellectual property litigation, and its        satellite in Boston, the firm is rapidly
                                          professional malpractice group also drew         expanding into a broader New England
                                          peer notice. Asbestos litigation remains a       practice. Strength areas include energy
                                          consistent strength for Bernstein Shur; the      litigation and class-action work. Recent
                                          firm serves as New England counsel for           matters include representation of the state of
                                          Owens-Illinois. Notable clients include          California in the renegotiation and litigation
                                          Temco, Bucksport Energy, New England             of power contracts worth more than $43
                                          Renewable Power Producers Association and        billion. In class-actions litigation, the firm has
                                          Seabreeze Pacific Regional Transmission          worked in multi-district litigation and in two
                                          System.                                          cases that were recently assigned to district


court in Maine. Representative clients include     Recommended firms                                 Local litigation stars
DaimlerChrysler, DuPont, International             Based in Bangor and with offices around
Paper, Verizon and the Central Maine Power         Maine, a small team of Eaton Peabody              David Barry
Corporation.                                       attorneys tackle state and regional               Pierce Atwood
   Market observers called a number of             litigation. Taking on a wide range of             Peter Culley
attorneys at the firm “notable people to           matters for plaintiffs and defendants, the        Pierce Atwood
look out for.” Peers and clients universally       group has developed a strong practice in
recommended William “Bill” Kayatta for             northern Maine that includes its work as a        Peter DeTroy
his “intelligent, excellent work” in complex       bridge to Canada. The firm does                   Norman Hanson & DeTroy
matters. Kayatta is lead counsel in the            considerable work in insurance defense, but       Robert (Bob) Frank
California power contracts litigation. He          it also has general commercial and media          Harvey & Frank
also serves as counsel for the defendants in       clients.                                          James (Jim) Goggin
ERISA class actions in Tennessee. Recent              Peers recommended Bernard “Bernie”             Verrill Dana
victories include a $60 million recovery for       Kubetz for his notable statewide work in
Maine Yankee Atomic Power Company.                 defamation and First Amendment issues.            Gregory (Greg) Hansel
Competitors also praised Peter Culley for          Clients include the National Broadcasting         Preti Flaherty Beliveau & Pachios
his work in products liability and                 Corporation (NBC), Taylor Network                 Charles (Chuck) Harvey
professional liability cases. Colleague Jeffrey    Communications, The Bangor Daily News             Harvey & Frank
White earned commendation from the                 and The Quoddy Tides.                             William (Bill) Kayatta,
market for his antitrust and intellectual             Peers and clients recommended Norman           Pierce Atwood
property work. Recent matters include a            Hanson & DeTroy for its “good litigation
favorable               settlement           for   team and especially strong worker’s               James (Jamie) Kilbreth in a trademark                compensation practice.” Primarily an              Verrill Dana
infringement case. Sources said partner            insurance defense firm, the boutique retains a    David King
David Barry stands out as a “rising star” for      reputation in medical malpractice and             Rudman & Winchell
his complex litigation and white-collar            healthcare law. Notable clients include           Bernard (Bernie) Kubetz
criminal defense work.                             Allstate Insurance Company, the Aerospace         Eaton Peabody
   Peers and clients had nothing but praise for    Industries Association of Canada (AIAC),
Preti Flaherty Beliveau & Pachios, calling this    Hanover Insurance Company, Liberty                John McCarthy
large group “an outstanding group of               Mutual Insurance Company, Maine Medical           Rudman & Winchell
litigators.” With offices in Maine, New            Center and Mead Corporation.                      Robert (Bob) Newton
Hampshire, and Boston, the litigation group           Peers praised name partner Peter DeTroy        Preti Flaherty Beliveau & Pachios
has rapidly diversified its corporate              as “top notch at the firm,” and said “he has
                                                                                                     Gerald (Gerry) Petruccelli
commercial focus from its insurance defense        the practice there that really stands out.”       Petruccelli Martin & Haddow
roots. “They are excellent strategists,” one       DeTroy has obtained favorable results as lead
client noted. “They put together a great plan      counsel in a number of insurance defense          Jonathan Piper
as we developed the case and focused in on         cases. He recently handled litigation for Fleet   Preti Flaherty Beliveau & Pachios
the key charges.” The firm has grown in            Bank of Maine, as well as many local and          William (Bill) Robitzek
construction, environment and professional         national insurers.                                Berman & Simmons
liability litigation, in addition to its general      Sources said that Bangor firm Rudman &
                                                                                                     Peter Rubin
commercial staples. Recent notable matters         Winchell provides “tried and true”
                                                                                                     Bernstein Shur
include a $40 million award for Kingspan           litigation to its clients. Large for the area,
Group in claims for common law fraud, and          the firm handles a variety of civil litigation    Steven Silin
a $7.4 million jury verdict against Fleet          disputes that reach statewide. Beyond its         Berman & Simmons
National Bank for financial planning               insurance defense practice, the firm has also     Julian (Jay) Sweet
malpractice. Other notable clients include         entered into a number of general                  Berman & Simmons
Aetna, Forbes magazine and Visa USA.               commercial disputes. Notable clients
                                                                                                     Jeffrey Thaler
   Competitors and clients said that chair of      include Admiral Insurance, Wal-Mart
                                                                                                     Bernstein Shur
the firm’s litigation group Jon Piper is an        Stores, Webber Oil Company, Federal
“indispensable litigator.” Peers recommended       Express and Medical Mutual Insurance              Jeffrey (Jeff) White
Piper for “spot-on First Amendment work,”          Company of Maine.                                 Pierce Atwood
while one client said: “If we have a big piece        Market sources recommended David King
of litigation anywhere, we count on him.”          for his litigation focus as a “good basic trial
Piper was counsel on the Fleet National Bank       lawyer.” Peers also praised John McCarthy as
and Kingspan group cases, and he also              a “good northern lawyer and good state

defended Forbes in a $10 million libel action.     lawyer.” Clients include Key Bank and Fleet
Peers enthusiastically recommended Robert          Bank of Maine.
“Bob” Newton for his work in a variety of             Commentators said that Verrill Dana was a
products liability cases. He was recently          “big player in business in Maine.” Sources
selected as chief trial counsel for a defendant    were optimistic that the firm would use its
in a large, multi-plaintiff toxic tort action.     corporate strength to build a more significant
Clients and peers also praised Gregory             group in Maine. “They are trying to build a
Hansel as “someone who knows how to                top team,” one peer said. The firm’s business
present and argue a case.” Hansel defended         background has kept insurance defense
Visa USA and Bayer Corporation in indirect         litigation in the background; strength areas
purchaser antitrust class actions in Maine         include products liability and general
Superior court. He is counsel for The              commercial work. Notable matters include
Sherwin-Williams Company in a proposed             the firm’s work as counsel to the state of
class action.                                      Maine in its tobacco litigation against Philip

                                                                   The definitive guide to America’s leading litigation firms and attorneys 155

      Morris, which resulted in a $1.5 billion         carpet manufacturer accused of copyright          appellate work. Business and corporate
      recovery. More recently, the group is            infringement. Other notable matters include       shareholder work comprises a large part of
      representing Star International Holdings in      a verdict for the defense in litigation against   the practice, in addition to some products
      trademark litigation, which is part of the       Maytag Corporation. Competitors also said         liability, medical malpractice defense and
      firm’s growing intellectual property practice.   James “Jamie” Kilbreth “is a great litigator.”    environment litigation. The group boasts a
      Clients include Bowdoin College, Artel,          Kilbreth works in antitrust, securities and       surprisingly large number of reported
      ImmuCell Corporation and Intellicare.            environment litigation.                           decisions for a small firm. Recent matters
         Peers recommended James “Jim” Goggin             All market sources agreed that Gerald          include defense of the Bishop of the Diocese
      as the force behind Verrill Dana’s “surging IP   “Gerry” Petrucelli of Petrucelli Martin &         of Portland, a plaintiff’s representation
      litigation.” Goggin handles copyright            Haddow is “an essential figure in Maine           against the city of South Portland, and trial
      litigation for the American Society of           litigation.” Head of the litigation-focused       work for the office of the Public Advocate in
      Composers, Authors and Publishers. In 2003,      firm, Petrucelli works with a team that           matters concerning Verizon and other
      he earned a favorable jury verdict for a large   handles a wide variety of litigation, including   utilities.