Appellate

Verrill attorneys represented the Government of Mexico in this high-profile appeal involving civil rights claims by over 1,000 Mexican migrant workers at an egg production farm in Maine. Mexico sought parens patriae status, specifically the right to assert as a plaintiff a quasi-sovereign interest in the general health and well-being of and the protection against discrimination against of workers of Mexican descent employed by the defendants. The First Circuit Court of Appeals, after spirited briefing and argument surrounding federalism concerns and international law, noted that Mexico’s arguments were not insignificant, but that without clear direction from the Executive or Congressional branches, it must affirm the dismissal of Mexico. The Court of Appeals decision is Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332, 334 (1st Cir. 2000). The matter proceeded, however, to a landmark settlement on behalf of the class of Mexican and other Hispanic workers.

Verrill represented the National Auctioneers Association as amicus curiae in the U.S. Supreme Court case South Dakota v. Wayfair, Inc. The case presented the issue of whether states could require out-of-state sellers to collect and remit state sales taxes, even where the seller lacks any physical presence in the taxing state. 138 S.Ct. 2080 (2018).

Verrill successfully represented ten Massachusetts citizens who challenged the Attorney General’s refusal to certify an initiative petition under the state constitution that would have banned casino gambling in Massachusetts. In a unanimous opinion, the Massachusetts Supreme Judicial Court vacated the Attorney General’s decision and directed that the petition be placed on the ballot before voters. Abdow v. Attorney General, 468 Mass. 478 (2014).

Verrill filed an amicus brief on behalf of the Maine Association of Mortgage Professionals in a case involving an issue of first impression under Maine law regarding the sufficiency of a statutory notice of right to cure given by a mortgagee through its agent. As the Maine Supreme Judicial Court put it, the narrow interpretation proffered by the mortgagor would have prohibited even a mortgagee’s attorney from giving a notice of a right to cure on behalf of a mortgagee client. The Law Court adopted the more practical interpretation consistent with that proffered by the Maine Association of Mortgage Professionals and Verrill. The decision is Wilmington Savings Fund Society, FSB v. Needham, 2019 ME 42.

Verrill Dana represented Penobscot Community Healthcare in an appeal to the Maine Supreme Court arising from an age discrimination complaint by one of its doctors. After the trial court granted summary judgment in favor of PCHC, the doctor complained that the trial court had failed to provide proper accommodations for his mental health issues in the context of the motion for summary judgment. The Supreme Court rejected the doctor’s appeal, affirming summary judgment in favor of PCHC. The case is Gallagher v. Penobscot Community Healthcare, 2019 ME 88.

In an action by a product manufacturer against its Distributing Agent in the United Kingdom, the Connecticut Superior Court granted summary judgment to the defendant on the plaintiff’s claim for breach of fiduciary duty, holding that the defendant was not a fiduciary. We successfully represented the plaintiff manufacturer on an appeal to the Connecticut Appellate Court, which held that, because the trial court had found the defendant to be an agent, it was necessarily a fiduciary as well. The appellate court remanded the case, which was settled on terms favorable to our client shortly before the scheduled trial date. Jolen, Inc. v. Brodie & Stone, PLC, 186 Conn. App. 516 (2018), cert. denied, 330 Conn. 972 (2019).

During an audit, Maine Revenue Services assessed a service provider tax on property tax recovery charges and carrier cost recovery charges that our client, a telecommunications company, charged its customers on calls that originated or terminated out of state. The tax statutes excluded or exempted (depending on the time period) charges in connection with interstate or international service. The State argued that the charges themselves were not telecommunications services and were neither interstate nor international in nature. The Law Court upheld the Bureau of Tax Appeals’ decision vacating the assessment, finding that anything that is part of the “sale price” of international or interstate telecommunications services is also part of the “sales of” those services, which clearly falls within the scope of the provisions excluding or exempting the sales from the service provider tax. State Tax Assessor v. MCI Communications Services, Inc., 2017 ME 119

The Massachusetts Supreme Judicial Court appointed us to investigate and, if appropriate, prosecute a Clerk-Magistrate for wrongdoing. After a six-day trial and appeal to the state supreme court, the court, for the first time in fifteen years, ordered the removal of a Clerk Magistrate from office. In re Powers, 465 Mass. 63 (2013).

A Connecticut lawyer and his firm were the plaintiffs in a class action in United States District Court against several title insurance companies, alleging that the title insurance companies’ use of so-called “national agents” to perform title agent functions was barred by a Connecticut statute stating that such work could only be performed by Connecticut attorneys. Verrill represented one of the title insurers. Federal jurisdiction was premised on the Class Action Fairness Act. After the class was certified and then de-certified without prejudice, the plaintiffs dropped their class action allegations in an amended complaint that premised federal subject matter jurisdiction solely on the former CAFA allegations. We developed an argument that the amendment to the complaint eliminated the sole basis for federal jurisdiction. The trial court dismissed the case and the United States Court of Appeal for the Second Circuit affirmed. Gale v. Chicago Title Ins. Co., 929 F.3d 74 (2d Cir. 2019).

We were engaged to represent the installer of a fire alarm system on an appeal to the Maine Supreme Judicial Court sitting as the Law Court following a $2,700,000 jury verdict in the trial court. During discovery, a contract was produced that inadvertently omitted the reverse side of one of the pages. That page included limitations on the installer’s liability. The mistake was ultimately uncovered and the page was produced prior to the close of discovery and prior to the completion of the installer’s employees’ depositions. On summary judgment, the trial court found that there was no discovery violation that required the court to strike the subject page, but omitted the page from the summary judgment record on the grounds that it might not be admissible at trial. At trial, the court excluded the page based on the balancing test found in Rule 403, finding that the late disclosure prejudiced the plaintiff camp and that the prejudice outweighed the probative value of the limitation on liability. On appeal, the Law Court found that the court did not abuse its discretion in refusing to strike the page as a discovery violation, but that it erred by excluding the document pursuant to Rule 403. In so holding, the Law Court noted the distinction between the prejudice required to strike evidence as a discovery violation and the prejudice required to exclude evidence pursuant to Rule 403. For a discovery violation, the prejudice looks to the opposing party’s capacity to respond to the evidence. For Rule 403, the prejudice is based on the specific nature of the evidence itself. As such, prejudice caused by unfair surprise during discovery is not, standing alone, grounds for finding prejudice under Rule 403. As a result, the Law Court vacated the $2,700,000 verdict and remanded the case to the trial court. Camp Takajo, Inc. v. SimplexGrinnell, L.P., 2008 ME 153