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Under the Dome: Inside the Maine State House 5.17.13

Fri, 17 May 2013 12:00 AM PST

Under the Dome: Inside the Maine State House is a weekly update that provides a high-level overview of recent activity at the Maine State House. If you would like more specific information regarding an item in this newsletter or related to government relations, please contact a member of our Government Relations Practice Group: John Delahanty, Andrea C. Maker or Avery Day.

Governor’s Fourth and Fifth Vetoes of the Session Sustained

Last week, Governor LePage vetoed his fourth bill of the session, LD 6, An Act Regarding the Authority of a School Board to Elect a School Superintendent. This bill would have overridden several municipal charter requirements relating to local residency requirements for superintendents. On May 14th, the House voted to sustain the Governor’s action in what was largely a party-line vote. Because the House did not muster the required 2/3rds vote to override the Governor’s veto, this bill is now dead. The very next day, the Senate considered the fifth bill vetoed by the Governor this session, LD 521, An Act to Change the Budget Approval Process for Alternative Organizational Structure. This bill would have changed the school budget approval process for alternative organizational structures. The Senate, by one vote, sustained this veto as well, killing this proposal.

Negotiations on Hospital Repayment Tied to Medicaid Expansion

In what has been termed a “surprise vote,” the Health and Human Services Committee voted on May 15th to link legislation expanding Maine’s Medicaid program to a proposal to pay the State’s debt to hospitals. Since nearly the beginning of the session, the Veterans and Legal Affairs Committee in conjunction with the Appropriations and Financial Affairs

Under the Dome: Inside the Maine State House 5.10.13

Fri, 10 May 2013 12:00 AM PST

Senate Confirms Tim Schneider as Maine’s Next Public Advocate

On May 7th, the full Senate voted to confirm Governor LePage’s nomination of Tim Schneider as Maine’s next Public Advocate. Tim will assume this position after practicing energy law in Pierce Atwood’s Energy Practice Group since 2008. The Public Advocate is charged with representing ratepayers’ interested in proceedings before the Public Utilities Commission as well as in regional and federal matters.

Governor LePage Vetoes Two More Bills

Last week, Governor LePage vetoed his third bill of the session, LD 405, An Act to Increase Municipal Agent Fees for Licensing and Registration of Motor Vehicles. On May 7th, the House voted to sustain the Governor’s action in what was largely a party-line vote. The same day that the Governor’s veto of LD 405 was sustained, the Governor vetoed his fourth bill of the session, LD 6, An Act Regarding the Authority of a School Board to Elect a School Superintendent. This bill seeks to override several municipal charter requirements relating to local residency requirements for superintendents. The House will vote first on whether to sustain or override this veto. That vote may take place early next week.

Governor Releases Budget “Change Package”

On May 8th, the Governor’s Office rel

Cliff Ruprecht & Gavin McCarthy Present at MSBA Litigation Institute

Mon, 06 May 2013 12:00 AM PST

Pierce Atwood partners Cliff Ruprecht and Gavin McCarthy were panelists on Saturday, May 4 at the Maine State Bar Association’s Litigation Institute in Augusta. The topic of the panel was “Business Torts.” The fellow panelists included:

Hon. John Nivison, Maine Superior Court, Business & Consumer Docket
Hon. Ann Murray, Maine Superior Court
Lee Bals, Esq., Marcus, Clegg & Mistretta
Paul Chaiken, Esq., Rudman Winchell

Sweeping Maine Tax Reform Proposal Announced

Fri, 03 May 2013 12:00 AM PST

A bipartisan group of 11 legislators have proposed an overhaul of Maine’s tax system, including major changes to the individual and corporate income tax, property tax, sales tax, and estate tax. The goal of the overhaul is to export more of the state’s tax burden to non-residents, thereby reducing the tax burden on Mainers and attracting individuals and businesses to the state. If enacted, the overhaul would have significant changes for Maine businesses. Although the actual statutory language of the proposal has not yet been drafted, the following is a summary of the key components of the plan.

Property Tax

Maine residents would receive a $50,000 homestead exemption
The exemption for non-profit entities, other than churches, would be reduced from 100 percent to 75 percent
The telecommunications tax would be paid to municipalities rather than the state
Property tax reimbursements to businesses under the BETR program would be funded only for 12 years after the property is placed in service

Income Tax

The individual income tax rate would be lowered to 4 percent, but would apply against adjusted gross income, thereby eliminating most deductions
Low-income taxpayers would pay no income tax and be entitled to a property tax fairness credit and a sales tax fairness credit
Nearly all tax deductions and tax credits would be eliminated, including the pine tree zone program and the new markets capital investment program
The corporate income tax rate would be lowered from 8.93 percent to 7.5 percent

Estate Tax

Vapor Intrusion -- EPA Offers Guidance for Comment, but Now More Issues than Ever

Fri, 03 May 2013 12:00 AM PST

by Kenneth Gray

After being taken to task by states and its own Inspector General for lack of final guidance on Vapor Intrusion, EPA has just released draft guidance documents for hazardous substances and petroleum products for comment. The guidance documents are already generating discussion on the blogosphere, with comments due to EPA by May 24th. Below are some of the issues EPA will have to address for its guidance for hazardous substances, and those of us addressing vapor intrusion for our clients.

Will the guidance collapse under its own weight? EPA’s recommended framework relies upon collecting and evaluating multiple lines of evidence to support risk management decisions, detailed investigation of vapor intrusion including rigorous data quality objectives and recognition of seasonal/temporal variability in levels, consideration of options for building mitigation and subsurface remediation, decisions on how institutional controls can be crafted and monitored, and how the public will be involved. The practical question is how much evidence and process is enough for a rational decision, and how costly and time-consuming an evaluation effort is justified? Rarely are actions taken quickly in the CERCLA or RCRA world, but if there are risks, then they should be acted upon, and applying the guidance in other contexts will be challenging. There already appears to be a consensus that EPA’s approach will be costly, and give vapor intrusion a life of its own in remedial decision-making. EPA will have to address this issue, or find its guidance bypassed or ignored, given the need for timely decisions.

Should we all buy stock in fan manufacturers and makers of synthetic vapor barriers? EPA offers (only on page 125 of 143) the question of weighing relative costs of characterization vs. engineered exposure controls. If EPA guidance is followed, the

Under the Dome: Inside the Maine State House 5.3.13

Fri, 03 May 2013 12:00 AM PST

This Week's Highlights

Legislature Enters Final Stretch
Appropriators Receive Bad News Regarding Revenue Forecast
Tax Reform Proposal Officially Rolled Out
Major Initiatives of the Governor Topic of Debate
Election Speculation Remains a Pass Time in Augusta
Utilities Committee Unanimously Approves Tim Schneider to be Public Advocate
Security Screening at the State House Likely to Remain
Proposal to Require Disclosure of Corporate Tax Information Heard in Committee
Repeal of Law Limiting Employer’s Right to Oversee Firearms at the Workplace Voted on in Committee

Legislature Enters Final Stretch

The Legislature has entered the final stretch in the push toward adjournment on June 19th. In order to adjourn on time, the presiding officers have set May 17th as the date by which Committees must vote on all of their bills. This will be a difficult deadline to meet. In fact, as of Monday of this week, Committees had voted on roughly 50 percent of their anticipated bill load, leaving more than

Bruce Miller to Present at "Not Just Another SBA Seminar"

Mon, 29 Apr 2013 12:00 AM PST

Pierce Atwood's Bruce Miller will be presenting a special SBA seminar on financing as well as today's most dynamic and timely marketing platform available to all businesses. Alongside Liza Alberti, Bank of America, Laurie Driscoll, SEED Corporation, and John McGovern, C. P. A., this expert panel will be answering any and all questions concering SBA loans and much more.

This seminar is taking place on May 14th from 7:30am-9:30am at The Eastern Nazarene College, 180 Old Colony Ave, Quincy, MA. Cost is free and space is limited. If you would like to attend please contact Jay Nuss Reality Group at jay@jaynussrealtygroup.com by May 3rd.

Under the Dome: Inside the Maine State House 4.26.13

Fri, 26 Apr 2013 12:00 AM PST

Major Tax Reform Proposal Starts to Take Shape

This week, the Maine media reported that Senator Woodbury is leading a bipartisan effort to draft a major tax reform proposal. This proposal will likely propose changes to all aspects of the tax code from the income tax to the sales tax to the estate tax. A bipartisan group of eleven legislators are working together on this proposal. The central thrust of this effort appears to be trying to shift much of Maine’s tax burden on to nonresidents.

In the past, wholesale tax reform efforts have not been successful. While the current effort will almost certainly be met with some opposition, this proposal could advance, providing an alternative approach to balancing the State’s budget. It would allow legislators to avoid politically unpopular aspects of the Governor’s budget proposal, like suspending municipal revenue sharing. This issue will continue to evolve as the reform package is finalized.

Unemployment System Matter Continues to Evolve

As reported last week, Governor LePage recently met with a number of unemployment hearing officers, which led the Maine Employment Lawyers Association to request a U.S. Department of Labor investigation into whether the Governor pressured these hearing officers. As this story was unfolding, the Governor’s Office announced that the Governor was forming a blue ribbon commissi

Ken Gray Presented at the Environmental Business Counsel of New England's Social Media Marketing Program

Fri, 26 Apr 2013 12:00 AM PST

Pierce Atwood partner Ken Gray presented along with other environmental and social media professionals at the Environmental Business Counsel of New England’s Social Media Marketing Program, 'The State of Social' in the Environmental Industry. The group of presenters covered issues regarding getting leadership buy-in, setting up a corporate Social Media policy, how social media is integrated into an overall marketing program, and how to deliver measurable ROI.

View Ken's presentation, State of Social Media: Even Law Firms Do It.

William Taylor to Present at NEWEA 2013 Spring Meeting

Wed, 24 Apr 2013 12:00 AM PST

William Taylor will be a presenter at this year's New England Water Environment Association's Spring Meeting: Legal and Regulatory Update: Stormwater Management being held June 2-5 at the Ocean Edge Resort in Brewster, MA.

Click here for more information and to register.

Cliff Ruprecht to Join Panel on Privacy Class Actions at ABA Section of Litigation Annual Meeting

Wed, 24 Apr 2013 12:00 AM PST

Cliff Ruprecht will be a panelist at the Annual Meeting of the ABA Section of Litigation on Friday, April 26th in Chicago, Illinois.

The panel will discuss the challenges privacy class actions present for businesses, their customers, and the judicial system during the program, Is Your Life An Open Book? Privacy Class Actions in the Age of Social Media. Companies now identify cyber risk as their number one concern. They increasingly face class actions based on privacy claims, as governments ratchet up their regulation of data use, and hackers threaten as never before.

Cliff will be joined on the panel by:

Hon. Rebecca Pallmeyer, US District Court, Northern District of Illinois
Margaret Lyle, Jones Day, Dallas, TX
Christopher Dore, Edelson LLC, Chicago, IL
Monique Bhargava, Winston & Strawn, Chicago, IL

For more information on the Annual Meeting, click here.

DEP Proposes New Requirements for Industrial Solvent Cleaning Activities

Wed, 24 Apr 2013 12:00 AM PST

On April 17, 2013, DEP posted to public comment proposed changes to its Chapter 130, Solvent Cleaning Regulation. The proposed changes would expand the applicability of the regulation from covering “solvent cleaning machines” to covering “solvent cleaning operations.” The proposed rule can be found here.

Under the proposal, industrial solvent cleaning activities with pre-control VOC emissions in excess of 5,400 lbs. during any consecutive 12-month period would be subject to new emissions and work practice requirements. Industrial solvent cleaning activities with pre-control emissions less than 5,400 lbs. would be subject to new recordkeeping requirements. The proposed regulation defines “industrial solvent cleaning” to include “the use of cleaning solvent to remove uncured adhesives, uncured inks, uncured coatings or contaminants…from parts, products, tools, machinery, equipment and work areas…incorporated into or used exclusively in manufacturing a product,” including but not limited to “spray booth cleaning, cleaning of manufactured components, parts cleaning, [and] cleaning of production equipment for maintenance….”

Note that the existing 5% VOC exemption for cold cleaning machines would not apply to many industrial solvent cleaning operations covered by the new proposal.

The proposed regulatory changes would exempt certain activities subject to Chapters 123, 129, 154, 159, 161, 162, laboratory testing, and R&D activities.

DEP is accepting public comments on its proposal until May 17, 2013. If you would like assistance determining whether the DEP’s proposed changes will affect your operations and, if so, developing comments for submission to DEP t

Governor LePage Names Daniel Wathen as Co-Chair of Unemployment Investigation Commission

Wed, 24 Apr 2013 12:00 AM PST

Gov. Paul LePage named former Maine Supreme Judicial Court Justice and Pierce Atwood attorney, Daniel Wathen, and George Jabar, a Kennebec County commissioner and Waterville attorney as co-chairmen of the commission that will investigate Maine's unemployment compensation system. The full press release can be read here.

In announcing LePage's appointments, a press release issued by the governor's office stated the commission's goal "is to ensure Maine's unemployment insurance system provides benefits for workers who are rightly entitled to them, while ensuring businesses are not charged when they appropriately let employees go. Additionally, the commission will review the rules and laws governing the system to assure Mainers they are consistently applied."

William Taylor to Speak at NHMLA Seminar Stormwater Management

Tue, 23 Apr 2013 12:00 AM PST

Partner William Taylor will be speaking at the New Hampshire Municipal Lawyers Association CLE seminar on Stormwater Management.

Click here for more details and registration information.

Employers must use the new Form I-9 starting May 7, 2013. Is your organization prepared?

Tue, 23 Apr 2013 12:00 AM PST

A new version of Form I-9 was released by USCIS on March 8, 2013. Employers were required by law to begin using the new version of Form I-9 effective immediately, but USCIS gave employers a 60-day grace period to implement the new form into business practice. This 60-day grace period will run out on May 7, 2013. Employers must use the new version of Form I-9 for any new hires or I-9 re-verifications completed on or after May 7, 2013.

Federal law requires that every employer hiring an individual for employment in the United States must complete a Form I-9, Employment Eligibility Verification. The new version of Form I-9 includes new fields for employee telephone numbers and e-mail addresses. The new version has also been reformatted and is now two pages in length. The new version of Form I-9 is available at uscis.gov.

We prepared the presentation below as an essential, interactive introduction to the new Form I-9 that identifies the changes and provides instructions. Click on the arrows at the bottom of the presentation screen to advance.

For additional information, employers can contact Tony Derosby or Katie Minervino. For updates regarding employment authorization and immigration, you can also follow Katie on Twitter @kminervino as she closely tracks E-Verify and other immigration-related developments.

John Gulliver Discusses Alternative Energy on WGAN News Radio Program

Mon, 22 Apr 2013 12:00 AM PST

Pierce Atwood partner John Gulliver recently appeared on the WGAN-560AM News Radio program Inside Maine to discuss alternative energy with hosts Ken Altshuler and former Governor John Baldacci.

To listen to the segment, click here.

Under the Dome: Inside the Maine State House 4.19.13

Fri, 19 Apr 2013 12:00 AM PST

Legislature Prepares to Enter Final Leg of Session

A quiet week in Augusta. The House and Senate did not meet and only five Committees met to work on legislation. When the Legislature returns next week, there will be less than two months to go until the statutory adjournment date of June 19th, and there is much work to be completed between now and adjournment.

Committees of jurisdiction are processing those portions of the biennial budget that fall under their purview, but the bulk of the negotiations at the Appropriations Committee have yet to take place. Substantive legislation continues to make its way through the Legislature’s various committees. Not all bills have been printed at this point. Some particularly controversial measures have languished and will not be addressed until the final weeks of session. Committees will eventually complete their work and then attention will fall to the House and Senate as they start to “move paper” in earnest. Right now, the House and Senate are meeting in session three days a week but that schedule will be adjusted and by the week of May 13th, both chambers will be meeting five days a week to process bills.

Unemployment System Under Scrutiny

Augusta’s latest political controversy, touching on Maine’s unemployment appeals process, emerged over the last week. Based on reports from a meeting Governor LePage

Massachusetts Packaging Plant Pays Nearly $485K Penalty for Environmental Violations

Wed, 17 Apr 2013 12:00 AM PST

A packaging company in Dudley, MA has agreed to pay $484,900 in penalties to settle EPA claims that the company violated numerous federal and state regulations. The violations occurred at the company’s liquid and aerosol packaging facility. This case is a reminder that environmental regulations regarding hazardous waste sweep broadly and often encompass activities that a typical manufacturing company might not recognize.

According to EPA’s complaint, filed in September 2012, Shield Packaging Company, Inc. (the Company) violated rules regarding hazardous waste management, chemical accident prevention, hazardous chemical inventory reporting, and oil pollution prevention contained in the Clean Air Act (CAA), the Emergency Planning & Community Right to Know Act (EPCRA), the Clean Water Act (CWA), and the Massachusetts Hazardous Waste Management Regulations.

Among other specific allegations, EPA asserted that the Company violated requirements in the CAA’s chemical accident prevention provisions by not fully developing and putting in place a risk management plan that adequately addressed processes that used extremely hazardous substances. The Company also failed to submit a required inventory of all hazardous materials on site to emergency responders under EPCRA, and failed to fully implement an Oil Spill Prevention, Control and Countermeasure plan, as required by federal law. Finally, the Company violated the Massachusetts Hazardous Waste Management Regulations by failing to conduct hazardous waste determinations on wastes at the facility, failing to manage hazardous wastes in accordance with required federal and state management practices, and failing to implement an adequate hazardous waste management training program at the facility.

This situation is particularly notable for the fact that numerous seemingly benign activities resulted in violations leading to serious financial consequences, including m

Time for Maine Employers to Get Busy With ACA Compliance

Fri, 12 Apr 2013 12:00 AM PST

Joanne Pearson published Time for Maine Employers to Get Busy With ACA Compliance in IMPACT: The Newsletter of Legislative and Regulatory Issues Facing Maine Business.

The Patient Protection and Affordable Care Act ("ACA ") creates multiple responsibilities that affect employers. These responsibilities include new reporting and notice obligations, and they start to take effect soon. This article is the first in a series explaining the most important of these requirements.

Stay tuned for more updates on the ACA from Joanne and our Healthcare Services practice.

Under the Dome: Inside the Maine State House 4.12.13

Fri, 12 Apr 2013 12:00 AM PST

Governor’s Veto of Tanning Bill Sustained by Senate

Governor LePage’s second veto of the 126th Legislature was sustained this week in the Senate. Last week, the Governor vetoed LD 272, An Act to Reduce Youth Cancer Risk. This bill would have prohibited individuals under the age of 18 from using tanning facilities. Support for this bill was divided along party lines when it proceeded through the Legislature. The Governor vetoed the bill and on April 9th the Senate voted to sustain this veto on a party line vote, killing this bill.

Gun Control Proposals Heard in Committee

This week, the Criminal Justice and Public Safety Committee held a series of hearings on over twenty separate proposals to either regulate guns or modify Maine’s concealed weapons permit program. One of these bills, LD 265, was of particular interest to the business community. This bill, An Act to Repeal the Restriction on Employers Regarding Firearms Kept in an Employee’s Vehicle, would repeal a law enacted during the last Legislature. Under this new law an employer may not prohibit an employee with a concealed weapons permit from keeping a firearm in their locked vehicle while at work. The original law was passed over the strong opposition of a number of Maine companies. At this week’s hearing, the bill to repeal this recently enacted law was supported by a number of emp

National Law Journal Names Pierce Atwood to its "Midsize Hot List" for 4th Year in a Row

Tue, 09 Apr 2013 12:00 AM PST

Pierce Atwood is pleased to announce that the National Law Journal has named the firm to its “Midsize Hot List” for the fourth year in a row. We are the only New England based law firm to be recognized for four consecutive years. By selecting Pierce Atwood for its 2013 list, the NLJ recognized the firm for its “keen business strategy” and “forward-thinking attorneys” who are guiding their practices in new directions, strengthening their mainstay practices and spreading into new regions. The Midsize Hot List is the NLJ’s annual ranking of the top 20 firms across the country with 51 to 150 lawyers.

This year, the NLJ’s write-up on Pierce Atwood highlights the expertise of its 100 year old energy practice, the national and global growth of that practice; and the success of the firm’s Financial Marketers Coalition, which is designed to give electric energy clients a say on regulatory controversies and a voice in the regulatory process.

The article also highlights the growth of the firm’s Boston office, led by burgeoning practices in intellectual property and technology; litigation; and midmarket mergers and acquisitions work, and recognizes the firm’s commitment to putting clients first.

“It’s exciting to learn that the NLJ still thinks we’re hot,” Managing Partner Gloria Pinza said. “It’s a terrific testament to have the hard work and creativity of our attorneys and staff recognized in a prominent publication like the National Law Journal.”

To read the full article, click here.

Pierce Atwood LLP is one of the l

Ruta K. Skučas Joins Pierce Atwood's Washington, DC Energy Group

Mon, 08 Apr 2013 12:00 AM PST

Pierce Atwood LLP is pleased to announce that attorney Ruta K. Skučas has joined the firm as counsel in its Energy Group. Ruta will work out of the firm’s Washington, DC office where she will counsel clients on energy issues, primarily electric and natural gas matters, before state and federal entities, including fedeal courts and state public utility commissions. Her clients range from financial institutions and lender-owned merchants to independent power producers and transmission line owners.

Ruta's clients benefit from her years of experience working at the Federal Energy Regulatory Commission (FERC). She served as law clerk to several FERC Administrative Law Judges (ALJs) after law school and then returned after 8 years of private practice. At FERC, Ruta worked in the Office of General Counsel where she drafted orders relating to PJM, MISO, reliability and natural gas. She also served as Commissioner Cheryl LaFleur’s legal advisor, focusing particularly on PJM, MISO and natural gas issues.

In addition to Ruta's time at FERC she also practiced energy law at White & Case LLP, with a focus on the regulatory aspects of project finance transactions, as well as mergers and acquisitions.

Ruta earned her J.D. from Boston University School of Law and her B.A. from Boston College. She is admitted to practice in the District of Columbia and Maryland, and is a member of the Energy Bar Association.

Pierce Atwood LLP is one of the leading regional law firms in New England and the largest in northern New England with 135 attorneys who serve regional, national and international clients from offices in Portland and Augusta, Maine; Portsmouth, New

Brooks Magratten and Byrne Decker to Speak at DRI's Life, Health, Disability and ERISA Seminar

Fri, 05 Apr 2013 12:00 AM PST

Pierce Atwood is proud to sponsor DRI's Annual Life, Health, Disability and ERISA Seminar being held at The Westin Copley Place downtown Boston starting Wednesday, April 24th at 12:30pm and commencing on Friday, April 26th at 12:30pm.

This year's agenda features an impressive mix of ERISA and non-ERISA programs. Sessions, led by seasoned in-house and outside counsel, will address the latest in ERISA, state law claims, and litigation issues also current developments in litigation and regulatory arenas.

Byrne Decker will be presenting on Retained Asset Accounts: Challenges to the Checkbook which will cover the controversy concerning Retained Asset Accounts (RAAs) having broad implications with respect to state contract and escheatment law, ERISA applicability, and Rule 23. He will also highlight their most recent developments, including several important class action decisions.

Brooks Magratten will also be addressing the crowd as a member of the DRI Law Institute, former DRI board member, and past chair of the DRI Life, Health and Disability Committee.

Click here for more information or to register for the seminar.

Under the Dome: Inside the Maine State House 4.5.13

Fri, 05 Apr 2013 12:00 AM PST

Governor LePage Issues First Vetoes of 126th Legislature

This week, Governor LePage vetoed two bills: LD 49, An Act to Amend the Laws Governing Payment of Fees to Registers of Deeds, and LD 272, An Act to Reduce Youth Cancer Risk. These were the first vetoes of the 126th Legislature and likely will not be the last time the Governor uses his veto pen this year.

LD 49 was a noncontroversial bill related to fees collected by registers of deeds and the Governor’s veto was unexpected. When the Governor’s veto was considered in the House, all but six members voted to override the veto. When this vetoed bill was presented to the Senate, however, the Senate narrowly voted to sustain the Governor’s veto by a margin of just one vote, killing the bill.

LD 272 relates to the use of tanning beds by individuals under the age of 18. This bill was the subject of heated debate when it initially proceeded through the Legislature and party line votes were taken on this bill in both the House and the Senate. The Governor vetoed this bill and his veto will likely be considered by the Legislature next week. Initial votes in both chambers indicate that there likely is not sufficient support for this bill to override the Governor’s veto.

Minimum Wage Proposal Sent to the Governor’s Desk

This week, the Legislature completed action on LD 611, An Ac

Major Victory for Bob Stier's Community Bank Clients against Patent Troll

Tue, 02 Apr 2013 12:00 AM PST

A group of New England community banks won a major victory Monday against a patent troll that has been filing patent infringement lawsuits against dozens of individual banks, claiming that they infringe patents covering ATMs that not only carry out banking services but also perform retail transactions on the Internet.

In response to ongoing threats by the patent troll, Automated Transactions LLC, a group of New England banks banded together in 2012 to form a defense group to resist what their attorney characterized as a “shakedown”. As seasoned patent litigator Bob Stier explained: “None of these ATMs can be used to buy airline tickets or send flowers, so my clients don’t need a license under the patents. But they’re still threatened with expensive patent litigation if they don’t pay. Unless they join together, it’s very, very expensive to stand up for their rights. Of course, the troll knows this, and until now, it has managed to intimidate more than 140 banks into settling.”

The situation changed Monday, however, when the Judicial Panel on Multidistrict Litigation, a special federal tribunal that oversees related lawsuits pending in different federal courts, granted a motion by community banks in Vermont, New Hampshire and Massachusetts to consolidate their patent lawsuits with related cases already pending in Delaware. “This is a huge win for my clients,” said Stier. “So long as the troll could divide and conquer, banks were at a disadvantage. Today’s ruling is a game-changer because it unites the banks against their common enemy.”

The lawsuits will now be heard by U.S. District Judge Sue Robinson, a Delaware jurist experienced with patent cases, who previously invalidated one of Automated Transactions’ basic pat

Governor LePage Nominates Pierce Atwood's Tim Schneider to Serve as Maine's Next Public Advocate

Mon, 01 Apr 2013 12:00 AM PST

Pierce Atwood LLP is pleased to announce that today Governor Paul LePage nominated attorney Timothy R. Schneider to serve as Maine’s next Public Advocate. The Office of the Public Advocate represents Maine utility consumers in proceedings before the Public Utilities Commission, regionally and before FERC.

“I’m honored to be nominated by the Governor to this important post, and look forward to the opportunity to put my energy experience to work on behalf of Maine ratepayers,” said Tim Schneider.

Tim is a member of the firm’s Energy Group. His practice includes a wide range of matters before state and federal regulators, in addition to energy-related transactions. He is a graduate of Harvard University and received his law degree from New York University School of Law. Prior to attending law school, Tim led youth programs for the Maine Sea Coast Mission in Washington County.

“Tim is a valuable member of our energy practice and we’re sorry to see him leave, but his appointment as the next Public Advocate will be excellent for Maine’s energy consumers,” said Gloria Pinza, Pierce Atwood’s Managing Partner. “Tim will bring his sharp mind, keen interest and expertise in energy policy to this important position that impacts the lives and pocketbooks of every Mainer on a daily basis.”

Pierce Atwood LLP is one of the leading regional law firms in New England and the largest in northern New England with 135 attorneys who serve regional, national and international clients from offices in Portland and Augusta, Maine; Portsmouth, New Hampshire; Boston, Massachusetts; Providence, Rhode Island; Stockholm, Sweden; and Washington, D.C. Follow us on Twitter @PierceAtwoodLLP.

Under the Dome: Inside the Maine State House 3.29.13

Fri, 29 Mar 2013 12:00 AM PST

Appropriations Committee Continues to Hear Biennial Budget

The Appropriations Committee wrapped up its third week of hearings on the Governor’s biennial budget proposal on Friday. This week, the Committee spent Monday in Brewer to hold a field hearing on the budget, an unusual move for the Appropriations Committee. The Committee has one more week of public hearings scheduled before the Committee will begin working the budget as a Committee. Committees of jurisdiction have been meeting to formulate recommendations on budget issues falling under their purview. These Committees will report their findings to the Appropriations Committee to inform its deliberations on the budget.

Governor Turns Pension Debate into Call for Action on Hospital Repayment Plan (Ya Mon!)

This week, the State and Local Government Committee considered a bill to provide pensions only to Governors who serve two full terms. This bill, which was a topic of conversation in Augusta, is seen as a partisan swipe at Governor LePage. Governor LePage, who is vacationing in Jamaica, used this bill as a foil to call for action on his proposal to repay the State’s debt owed to hospitals. On Wednesday evening, a tweet from the Governor’s Twitter account read: “News Flash from Jamaica: If Democrats have my hospital bill on my desk by Saturday, I will give up my pension. Ya Mon!”

Pierce Atwood Business Counselor Q1 2013

Tue, 26 Mar 2013 12:00 AM PST

By: Robert Ravenelle and Kris Eimicke

Since the rise of limited liability company laws in the late 1990s, closely held businesses typically have operated as “S” corporations or limited liability companies to obtain pass-through income tax treatment, thereby avoiding two levels of income taxation. Often (perhaps too often) the choice between the two has come down to the issue of employment taxes. The Affordable Care Act imposes new Medicare-related taxes effective this year which may further muddle the choice of entity decision. In this article, Pierce Atwood’s Rob Ravenelle and Kris Eimicke discuss these new taxes and how they impact “S” corporation shareholders and limited liability company members.

Read Full Article

Pierce Atwood Business Counselor is a quarterly publication covering current developments and issues of interest in the business community. For more information about the topics covered in this edition of the Pierce Atwood Business Counselor, please contact the article’s author or a member of our Business Practice Group.

Choice of Entity for Closely Held Businesses – The Affordable Care Act Further Complicates the Decision

Tue, 26 Mar 2013 12:00 AM PST

When starting a new business, an entrepreneur faces an important decision: the type of entity to form to operate the business. The two most common choices for closely held businesses are “S” corporations and limited liability companies (“LLCs”).

In 2010, we wrote about the “S” corporations and LLCs and the various factors to consider when choosing between them (e.g., pass-through income taxation, employment taxes, flexibility of capital structure, allocation of profits and losses, types of owners, and the ability to distribute property in kind) in an article entitled "Choice of an Entity for Closely Held Business: S Corporations, LLC and Employment Taxes." This article focuses on just one of those factors, employment taxes, and discusses the effect of the new taxes imposed by the Affordable Care Act on the choice of entity decision.

Employment taxes often have been (rightly or wrongly) the deciding factor in choosing between an “S” corporation and an LLC. Where employment taxes are the deciding factor, entrepreneurs typically choose the “S” corporation because of the potential to realize employment tax savings when an owner-employee expects that her salary will be less than her share of the net earnings of the corporation. With an “S” corporation, only the salary paid to the employee-owner is subject to employment taxes, whereas active employee-owners of an LLC pay employment tax on their entire share of the LLC’s income.

In 2013, employment taxes are made up of Social Security tax equal to 12.4 percent of the first $113,700 of wages or self-employment income, and Medicare tax equal to 2.9 percent of the total wages or self-employment income. In the case of wages, the employer pays one half of these taxes. In the case of self-employment tax, the employee pays the entire amount.

Beginning this year,

NH Supreme Court Says Unlawful Operation of Solid Waste Facility or Septic System Can Result in Criminal Penalties

Mon, 25 Mar 2013 12:00 AM PST

On March 20, 2013, the New Hampshire Supreme Court issued a decision in State v. Guay, holding that the defendant’s unlawful operation of a solid waste facility or septic system can result not just in civil fines, but also in criminal penalties. This decision clarifies an ambiguity in New Hampshire law, and increases the need for diligence in complying with state requirements when operating a solid waste facility or septic system.

The case began when an investigator from the New Hampshire Department of Environmental Services (DES) discovered numerous buried objects on two of the defendant’s properties. These items included a 275-gallon home heating oil tank, carpeting, old mattresses, foam insulation, and sheetrock. An investigation of one of the properties also revealed liquid on top of the defendant’s septic system and a garden hose attached to a sump pump that channeled untreated brown water from a septic tank, bypassing the leach field and discharging liquid in the direction of a river.

Based on the DES investigator’s discoveries, the State charged the defendant with three misdemeanors: two counts of unlawful operation of a solid waste facility and one count of unlawful maintenance of a septic system.

One of the main issues on appeal concerned whether NH RSA 485-A:37, the statute prohibiting unlawful operation of a solid waste facility or septic system, allowed for criminal penalties, as opposed to merely civil fines. The plain language of RSA 485-A:37 provides that persons who operate a solid waste facility or septic system in violation of that chapter are subject to penalties provided in RSA 485-A:43, IV, which provides only for a civil fine up to $1,000 per day. The defendant thus argued that the State was precluded from filing criminal charges by the plain language of the statute. The State pointed to RSA 485-A:43, I, which provides that any person who violates a