Whether confronted with a complex commercial matter or a class action, Pierce Atwood's nationally-recognized litigation attorneys consistently get results for their clients in a practical and efficient manner.

Pierce Atwood's litigation lawyers have successfully litigated a broad variety of matters in state and federal trial and appellate courts and agencies, as well as a variety of alternative dispute resolution settings.  Regardless of the type of case, the Litigation Group takes great pride in partnering with its clients to formulate and execute on the right approach to serve the client's needs in any given situation.

Areas of Expertise

Increasingly, clients are concerned about the time and expense needed to bring a case to final resolution through trial and appeal. Instead, many parties turn to alternative dispute resolution as a way to resolve their cases more quickly and efficiently. Pierce Atwood offers an unsurpassed level of expertise and service in arbitration, mediation, and other forms of alternative dispute resolution.

Click here for more information on our Arbitration & Mediation practice. 

Representative Experience

John Bulman has been appointed sole arbitrator in an AAA large complex case dispute relating to the engineering, design, procurement and construction of a power plant in the Eastern U.S.

AAA Large Complex Dispute Concerning Power Plant EPC Issues

Represented US entity in distributorship dispute with UK company and its US sales and marketing subsidiary.  The matter was administered by ICDR and arbitrated in Rhode Island. Issues concerned reaching the correct respondent (which had approximately 13 related companies).  Received award for 100% of damages, plus attorney’s fees under Rhode Island statute, plus interest, and had the correct respondent liable for the award.  The matter is now in collection in the UK, which administers such awards under the New York Convention.

Arbitration Award for US Subsidiary of UK Company

John Bulman has been appointed to chair an arbitration panel regarding a large complex dispute involving development of a new petrochemical plant.

Arbitration Concerning New Petrochemical Plant

Represented one of two partners in partnership dispute pertaining to operation of P&C personal lines insurance agency.  Ultimately we secured an agreement to arbitrate the dispute, addressing liability and then issues of valuation for a divorce between the partners.  Secured findings in favor of our client and very successful award of damages (high six figures) for his interest in the agency.

Arbitration in Insurance Agency Partnership Dispute

John Bulman is serving as an arbitrator in a matter relating to the construction of a natural gas-fueled combined-cycle generating facility in New England.

Arbitration Regarding Construction of Generating Facility

John Bulman has been appointed the sole arbitrator in a large complex construction dispute involving a multi-unit residential condominium development project located in suburban Boston.

Arbitrator in Condominium Project Construction Dispute

Represented a construction manager seeking payment for labor and materials (plus profit) provided to a luxury condominium developer, prior to termination. Required to prove that the termination was for convenience and then to prove damages, which was challenging due to the manner in which financial records were maintained.  The developer offered nothing to settle until first day of hearings, when he offered slightly less than $1 million.  Ultimately an award was issued providing for payment to construction manager of slightly more than $5 million, representing almost a 100% recovery plus interest.

Award for Construction Manager in Payment Dispute

Represented the developer of limited service hotel in dispute with construction manager, leading to construction manager’s termination of the contract, arguing material breaches by the developer. The matter went through mediation and then arbitration with award being issued in favor of developer for cover. The proceeding also involved peripheral disputes with various trades who had liens on the project.

Award for Developer of Limited Service Hotel

Served as chair of arbitration panel addressing claims by public owner against Design Builder of waste-to-energy generating equipment.  Following issuance of award against Design Builder, at the request of the Design Builder, successfully mediated a resolution in a follow-up dispute with its vendors/subcontractors and consultants.

Chaired Arbitration Panel Concerning Waste-to-Energy Generating Equipment

John Bulman has been asked to serve as an arbitrator in a consumer dispute based on the Fair Debt Collection Practices Act regarding alleged violations of the Telephone Consumer Protection Act and breach of contract.

Consumer Dispute Concerning Fair Debt Collection Practices Act

John Bulman is currently sitting on a Dispute Review Board for a nuclear power plant construction project. Industry professionals are chosen to sit on Dispute Review Boards by the interested parties involved with a construction project for their experience, their independence, their commitment to the project, and their training as mediators and arbitrators. 

Dispute Review Board for Nuclear Power Plant Construction Project

In a matter recognized by Rhode Island Lawyers Weekly as one of the most important opinions of 2012, we obtained a favorable order for a general contractor seeking to enforce an Ohio arbitration clause. The matter was of particular importance because it was the first time a court concluded that the Federal Arbitration Act preempted a Rhode Island statute that prohibits out-of-state arbitration in certain construction matters.

Favorable Order in Enforcement of Ohio Arbitration Clause

Obtained a favorable settlement for an owner of a spiritual retreat facility against its contractor and design professionals through a seven-party mediation following an incident that involved a burst sprinkler pipe, substantial property damage, and discovery of pervasive latent construction defects. Before the mediation, Pierce Atwood worked closely with the owner and the owner’s representatives to review the defective conditions and press for performance of the remedial work by the construction and design professionals.  Multiple demands on the contractor’s performance bond had to be made to ensure performance of the corrective and incomplete work.  Once the work was completed, Pierce Atwood represented the owner in the multi-party mediation that dealt with challenging issues involving construction defects with the fire protection system, reimbursement for additional costs due to the delayed project, complex insurance coverage issues (including with the owner’s property insurer), contract terms (waiver of subrogation, waiver of consequential damages), continuing warranty obligations, and the scope and finality of the release. At the end of the mediation process, the owner was paid for costs it incurred during the delayed project and it paid nothing against the claims submitted by its contractor and design professionals.

Favorable Settlement in Seven-Party Mediation

We represented a leading energy provider in mediation of approximately $150 million in related claims by two contractors arising out of a $1.55 billion transmission line construction project.  The claims arose from an allegation that environmental compliance on the project was overly restrictive, leading to both delay and significantly increased costs of compliance.  After two days of mediation per claim that included presentations by expert witnesses, we resolved the disputes for a fraction of the requested amount. 

Mediation in Transmission Line Construction Project

John Bulman mediated a dispute over an interstate highway construction project between a state department of transportation (DOT) and a regional heavy contractor. 

Mediation of Highway Construction Project Dispute

John Bulman mediated a four-party property damage subrogation action currently pending in Massachusetts Federal Court.

Mediation of Property Damage Subrogation Action

John Bulman mediated a P3 (public-private partnership) dispute relating to a transportation infrastructure project in the Western U.S.

P3 Dispute Concerning Transportation Infrastructure Project

Served as chair of a panel addressing the termination of construction manager on a major biophysics research building.  Beyond overseeing highly contentious proceedings, issued lengthy decision construing scope of section 4-61 of the Connecticut General Statutes, the Connecticut dispute resolution law pertaining to this public construction contract.  Decision was subject to judicial review and was affirmed.

Panel Chair in Public Construction Contract Dispute

Represented one of three siblings in a dispute pertaining to care of mother with dementia and matters regarding handling of trust funds by one of the two brothers. We had the dispute stayed, pending mediation/arbitration, under which mediation occurred on the first day and when it failed, the matter immediately proceeded to arbitration before the same person who had been mediator. We received a total win for our client who was named solely responsible for the mother’s medical care, plus was given sole authority over the trusts. Brother was also ordered to reimburse the trusts for payments improperly made to himself and his wife while he managed finances.

Success in Arbitration Concerning Mother's Care & Trust Funds

Pierce Atwood delivered a successful outcome to the regional sewer authority Narragansett Bay Commission (NBC) at an American Arbitration Association (AAA) construction arbitration relating to a claim that a differing site condition impacted the installation of a concrete drop shaft.  The 30-foot diameter drop shaft was 220 feet deep and connected to the NBC’s one-mile long retention tunnel designed to capture sewerage that historically flowed into Narragansett Bay during rain storms.  During the contractor’s grouting operations at an adjacent structure, the contractor’s drop shaft experienced a large amount of water intrusion (up to 250 gallons per minute).  The contractor spent $1.1 million to pump out the water and seal the concrete walls of its drop shaft.  Pierce Atwood attorneys John Bulman and Katie Kohm handled the defense and the hearings before the panel of three AAA arbitrators.  The arbitrators gave credence to Pierce Atwood’s main arguments, found that the contractor failed to carry its burden of proof, and dismissed the contractor’s claim in its entirety.

Successful Construction Arbitration for Regional Sewer Authority

In 2016, Pierce Atwood partner John Bulman successfully mediated a six-party case pending in federal court.  The matter involved a dispute between a publicly traded company and former board members and officers.  The allegations included claims of breach of fiduciary duty, gender discrimination, theft of intellectual property and whistleblower claims.  Three insurance policies were in play and after two days of mediation and some follow up, the matter settled.

Successful Mediation of Six-Party Case in Federal Court

We represented a minority shareholder in Major World, New York City’s largest used car dealership. Our client brought suit against Major World and its directors and officers for breach of fiduciary duty in bringing about a going-private buyout at an exceedingly low price. The case has an unusual cast of characters, including a movie producer and a federal prisoner. The defendants tried repeatedly to slow the process and move for dismissal on a variety of specious grounds. Pierce Atwood prevailed at every turn, with the defendants and all their outside directors bearing the burden of proving that the transaction was entirely fair to minority shareholders. The court also held that the controlling stockholder’s brother can even be found liable for aiding and abetting – a cause of action we did not even plead. The stage is now set for mediation, which will also include a large D&O insurance carrier.

Victory for Minority Shareholder of Major World Used Car Dealership

A significant portion of our litigation practice focuses on appellate work, arising both when we are retained solely for the appeal and in cases we have first litigated before the trial court. Where we are involved from the outset, our goal is to think long-term, focusing not only on issues that may impact the strategy at trial, but also on the best ways to position the case for a future appeal.

We handle cases covering a range of issues involving areas of federal law and significant areas of state and commercial law. We often are asked to prepare amicus briefs on behalf of industry associations and coalitions. Our lawyers have made numerous oral arguments before the United States Supreme Court, in appeals courts across the country, and before state Supreme Courts throughout New England.  

Click here for more information on our Appellate & Amici practice. 

Representative Experience

Pierce Atwood won an insurance coverage appeal to the Massachusetts Appeals Court for our client, an insured food processing company. The appeal turned on the issue of whether an unexplained cause of damage to property constitutes an “occurrence” under a commercial general liability (CGL) insurance policy. The appeals court reversed summary judgment that the trial court entered in favor of the insurer, and remanded the matter to the trial court for further proceedings. The decision is significant because it is the first in the country where the court ruled that an insured’s liability based on application of the res ipsa loquitur doctrine could be sufficient to establish an “occurrence” under a CGL policy, despite not knowing the actual cause of damage. This is an important decision that is extremely beneficial to policy holders.

Appeals Court Victory in Insurance Coverage Dispute

We received two favorable appellate decisions on behalf of our developer client, Montrose School Park, LLC, in a series of cases challenging permits for a residential cluster development in Beverly, Massachusetts. Browne v. Conservation Commission of Beverly, 85 Mass. App. Ct. 1121 (2014) (unpublished) and Browne v. Planning Board of Beverly, 91 Mass. App. Ct. 1125 (2017) (unpublished).

Favorable Appellate Decisions for Real Estate Developer

Pierce Atwood obtained a favorable outcome for our clients at the First Circuit Court of Appeals in Penobscot Nation v. Mills, the case brought by the Penobscot Indian Nation asserting control over the use and water quality of the Penobscot River in Maine. On June 30, 2017, by a 2-1 vote, the First Circuit panel affirmed the Maine U.S. District Court’s ruling that the tribe’s claims are barred by the 1980 Maine Indian Claims Settlement Act. The First Circuit majority also rejected the tribe’s claim that the state has interfered with the tribe’s sustenance fishing rights. Pierce Atwood represents a coalition of municipal and private wastewater discharge licensees on the Penobscot River.

Favorable Ruling in Penobscot Nation v. Mills at First Circuit Court of Appeals

In two separate class actions, in which Pierce Atwood separately represented Unum Life Insurance Company and Sun Life Assurance Company, the U.S. Court of Appeals for the First Circuit held that using Retained Asset Accounts (RAAs) to pay death benefits claims on group life insurance policies does not violate the Employee Retirement Income Security Act (ERISA), where the policies either require or permit payment by RAA.

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First Circuit Wins for Life Insurance Companies in ERISA Class Actions

Pierce Atwood successfully represented the Maine House Republicans and the Maine Heritage Policy Center before the Maine Supreme Judicial Court regarding the validity of Maine’s ranked-choice voting law. In a first-in-the nation ruling, the SJC unanimously agreed with our argument that the ranked-choice voting law was unconstitutional because it violated the Maine Constitution’s plurality vote requirement. The ruling has national implications for proposed ranked choice voting laws in states that have similar constitutional provisions.  

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Success at Maine Supreme Judicial Court: Ranked-Choice Voting Law Unconstitutional

Served as lead appellate counsel for multinational busing company successfully reversing administrative tax ruling.

Tax Ruling for Multinational Busing Company

Attorneys representing other attorneys: When lawyers need a lawyer, their choice of representation says a lot about the firm they select.

When another large law firm in Portland, Maine needed counsel to defend a high-profile legal malpractice lawsuit against it, they turned to Pierce Atwood. On many occasions, lawyers at Pierce Atwood have helped lawyers at other firms , big and small, to defend against allegations of professional negligence, breaches of fiduciary duty, and violations of the Rules of Professional Conduct. Pierce Atwood provides this assistance both in court and before administrative bodies regulating lawyers, such as the Board of Bar Overseers.

Handling such matters requires discretion as well as skill. Pierce Atwood lawyers provide tactful representation, aggressive advocacy, and the experience and judgment to know when to employ each effectively to attain positive results for our clients.

Class actions remain one of the most powerful tools used by plaintiffs' counsel.  In many cases, the threat of a class action is used primarily to force a settlement from businesses that have done no wrong.  When this threat arises, Pierce Atwood's nationally recognized team of class action defense attorneys assists clients in vigorously opposing the plaintiffs' claims.

Click here for more information on our class action practice. 

Representative Experience

Pierce Atwood represents a large national bank in an overdraft fee MDL pending in the District of South Carolina.  During the course of the representation, we obtained dismissal of plaintiffs’ claims based on the bank’s past practice of ordering debits from high to low, and of usury claims based on the bank’s assessment of additional fees after a customer’s checking account continues to have a negative balance ten business days after the initial overdraft.  In addition, we successfully opposed plaintiffs’ motion to certify a class seeking actual damages for alleged violation of the Electronic Funds Transfer Act. 

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Bank Overdraft Fee Litigation

In a case that should be of interest to manufacturers and distributors, and especially to suppliers of building products, Pierce Atwood’s class action defense team defeated class certification in a building products case in the District of Massachusetts. Plaintiffs alleged defective design and manufacture of decking sold by our client. After extensive fact and expert discovery, Plaintiffs filed a motion for class certification, and a hearing was held. On September 21, 2015, District Judge Denise Casper issued her decision denying Plaintiffs’ motion, ruling that individualized issues of causation and injury precluded findings of commonality, typicality and adequacy under Federal Rule of Civil Procedure 23(a). The judge based her ruling, in part, on evidence that only a small percentage of purchasers had reported problems with the decking, and that almost all of the warranty claims those purchasers submitted had been honored.

Class Certification Victory in Building Products Case

In a putative class action in Maine Superior Court filed on behalf of borrowers with mortgages allegedly discharged improperly by Bank of America, Pierce Atwood helped the bank obtain a voluntary dismissal of all claims in the face of the bank’s motion for summary judgment. Quebbeman v. Bank of America, N.A., Maine Superior Court No. BCD-CV-15-01 (Order dated November 9, 2015).

Dismissal of Claims Against National Bank in Mortgage Discharge Class Action

We successfully defended a major retailer in parallel federal multi-district and state level class actions after a data security breach resulted in exposure of electronic payment card data.

Dismissal of Class Actions Against Retailer for Data Security Breaches

On behalf of North America’s largest vinyl siding manufacturer, we recently obtained dismissal of breach of warranty and consumer protection claims in a putative nationwide class action filed in the Northern District of New York.  The court held that the four named plaintiffs’ claims were not subject to personal jurisdiction in New York, and based its decision in part on the Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court.

Dismissal of Vinyl Siding Class Action

We represented a check processing company and its debt collector affiliate in a series of putative class actions filed in California, Kansas, Maine, New York, and North Carolina, and consolidated in Multi-District Litigation in the District of Maine.  After obtaining dismissal of all of the lawsuits originally filed outside of Maine, we negotiated a favorable nationwide class action settlement for our client of all remaining claims.

Dismissals and Settlement of Fair Debt Collection Practices Act Litigation

In two separate class actions, in which Pierce Atwood separately represented Unum Life Insurance Company and Sun Life Assurance Company, the U.S. Court of Appeals for the First Circuit held that using Retained Asset Accounts (RAAs) to pay death benefits claims on group life insurance policies does not violate the Employee Retirement Income Security Act (ERISA), where the policies either require or permit payment by RAA.

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First Circuit Wins for Life Insurance Companies in ERISA Class Actions

We recently represented a bank in a putative nationwide and statewide class action concerning student loan services filed in the Eastern District of Pennsylvania.  After we and counsel for other defendants filed motions to compel individual arbitration, the case was settled on favorable terms.

Student Loan Litigation

Pierce Atwood successfully defended a nationwide nonprofit business association and its for-profit affiliate in a putative class action on behalf of members alleging unfair trade practices, breach of fiduciary duty, breach of contract and misrepresentation; we successfully obtained dismissal of five of seven counts and defeated class certification as to the remaining two counts.

Successful Defense of Nonprofit Business Association

We recently represented a Maine-based retailer in a case alleging overtime violations under the Fair Labor Standards Act and analogous state statutes.  Plaintiffs claimed that our client’s store managers located in Maine and other states were misclassified as exempt employees, and that they should have received premium pay for overtime hours worked.  After an initial investigation, we were able to negotiate a favorable settlement that was approved by a New York state court.

Wage and Hour Class and Collective Action Against Multi-state Retailer

We successfully defended a private equity firm in a class action matter relating to putative WARN Act violations by its investment, a now defunct toy retailer.

WARN Act Class Action

In today's increasingly complex world, it's no surprise that business disputes are becoming more complex too. Our commercial trial lawyers have the skill and confidence to seize the initiative, control the litigation agenda ,and efficiently and effectively obtain results for our clients in federal or state courts around the country, before government agencies in regulatory and administrative litigation, or in private arbitrations.

Whether representing Fortune 500 companies or medium and small size business clients, we take pride in the fact that we provide all  clients with the same vigorous representation and degree of service and attention. We understand and respect our clients' budgets and deadlines,  communicate frequently during litigation, and ensure that they are fully advised of the progress of their cases. Most importantly, we take the time to get to know our clients' businesses so that we can provide the best overall advice.

We keep up with changing technologies and are experts in electronic discovery. We routinely use in-house automated litigation support tools that allow our lawyers to give clients better, more efficient and cost-effective representation.

Representative Experience

In a dispute involving a 17-year business relationship between companies in the plastic film industry, firm attorneys prevailed at trial and on appeal in this breach-of-contract case. When a firm client suspected it was being shortchanged by its materials supplier, the future of their small family business was at stake. Pierce Atwood stepped in and helped convince a jury in Rhode Island federal court to award $2 million in lost profits to our client and ensure that the 17-year contract would remain in force. The award and the contract helped ensure the future of this small business.

$2 Million Jury Verdict in Bet-the-Company Litigation

We successfully tried a NASDAQ-listed company's claims against an ASIC developer who had contracted to develop the client's next generation product. The 14 person jury returned a unanimous verdict in favor of our client for $36.7 million in damages, which is believed to be the largest verdict ever from a state court jury in Massachusetts. The jury also returned a verdict for the client rejecting the developer's approximately $7 million in counterclaims.

$36.7 Million Verdict for Public Company Client

The litigation attorneys in our Augusta office successfully defended a mechanical services company in connection with work done on a hydroelectric facility.

Defense of Mechanical Services Company

Lead counsel in obtaining dismissal of federal and state privacy claims against a large retailer in U.S. District Court in Boston.

Privacy Claims Against a Large Retailer

Defended a utility company against contract and tort claims.

Utility Company Contract and Tort Claims

We represented a minority shareholder in Major World, New York City’s largest used car dealership. Our client brought suit against Major World and its directors and officers for breach of fiduciary duty in bringing about a going-private buyout at an exceedingly low price. The case has an unusual cast of characters, including a movie producer and a federal prisoner. The defendants tried repeatedly to slow the process and move for dismissal on a variety of specious grounds. Pierce Atwood prevailed at every turn, with the defendants and all their outside directors bearing the burden of proving that the transaction was entirely fair to minority shareholders. The court also held that the controlling stockholder’s brother can even be found liable for aiding and abetting – a cause of action we did not even plead. The stage is now set for mediation, which will also include a large D&O insurance carrier.

Victory for Minority Shareholder of Major World Used Car Dealership

No matter the size, few construction projects are completed on time and without a hitch.  Pierce Atwood has decades of experience representing general contractors, owners, subcontractors, and suppliers to help address and resolve a wide range of problems in order to get projects back on track.

Our construction litigation experience covers all aspects of the construction process, including:

  • Pre-construction issues, including advice on drafting and interpreting the construction agreement
  • Mid-stream informal dispute resolution and problem solving
  • Post-construction claims litigation, including hearings before arbitrators and mediators

Our surety litigation experience is equally broad, and encompasses:

  • Advice on contract, surety bonds, and general agreements of indemnity
  • Prosecution and defense of fidelity, surety, and indemnity claims
Representative Experience

First Circuit Affirms Challenge to Local Ordinance Restricting Competition on City Projects: In a case of first impression, and on behalf of Merit Construction Alliance and its members, we successfully challenged the enforcement by the City of Quincy (Mass.) of the residency, apprenticeship and health and welfare benefits provisions of its so-called “Responsible Employer Ordinance” in the U.S. District Court for the District of Massachusetts. The First Circuit Court of Appeals affirmed the lower court's ruling, holding that the Responsible Employer Ordinance (REO) is unconstitutional under the Privileges and Immunities Clause of the U.S. Constitution, and is preempted by the federal Employee Retirement Income Security Act. The decision has wide-ranging implications, as there are some 20 or more municipalities in the Commonwealth with similar ordinances, which are now vulnerable because they are arguably unenforceable.

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First Circuit Affirms Challenge to City of Quincy Ordinance Restricting Competition on City Projects

We successfully defended our clients Turner Construction Company and Stryker Biotech in a case that settled important issues of contract and evidence law affecting New Hampshire litigants. In Axenics, Inc. v. Turner Construction Company the New Hampshire Supreme Court ruled in favor of our clients that (1) a subcontractor cannot bring an unjust enrichment claim against an owner who has paid the general contractor in full, and (2) internal memoranda, work product, or other materials created for the purpose of settlement cannot be used at trial as evidence of liability or damages, even if they are never conveyed to the other side. This hotly-contested case came to the Supreme Court on appeal of a $1 million-plus judgment for the plaintiff-subcontractor, after an eighteen-day bench trial before Merrimack County Superior Court and Business and Commercial Dispute Docket Judge Richard McNamara.

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NH Supreme Court Clarifies Unjust Enrichment Doctrine in Construction Cases

We defended a general contractor’s surety in a multimillion dollar case involving failed concrete panels in a water treatment plant in Vermont. The matter was resolved without trial.

Surety Success

Today's employers, employee benefit plan sponsors, insurers, and other fiduciaries face a complex and frequently evolving array of claims under the Employee Retirement Income Security Act of 1974 and state law. Our lawyers are actively involved in the leading industry groups, including the ABA and DRI Life, Health and Disability Committee, and stay abreast of implementing regulations, enforcement, and legal developments in order to provide the best advice to our clients. Equally important, we maintain a successful benefits litigation practice with multi-jurisdictional expertise, appearing on behalf of clients in cases across the country. By doing so, we help clients work toward a uniform body of law to resolve benefits disputes. We also take a proactive approach by working with clients to review plan language and adopt effective claims administration procedures before problems arise.

We handle disputes over entitlement to benefits and associated removal and ERISA preemption issues, breach of fiduciary duty and prohibited transaction claims, subrogation actions, bad faith and rescission suits, and complex class actions in both ERISA and non-ERISA contexts. We have assumed a lead counsel role in both routine and complex benefits cases in courts in numerous states and have represented clients in connection with several important U.S. Supreme Court ERISA cases.

Representative Experience

Lead counsel in obtaining dismissal of employment claims against hotel operator in U.S. District Court in Boston.

Employment Claims Against Hotel Operator

Obtained dismissal of employment discrimination claims against a hotel management company.

Employment Discrimination at Hotel Management Company

The First Circuit affirmed summary judgment for our client Standard Insurance Company in a disability benefits case. The court held that Standard was not liable for payments of benefits to treat Chronic Lyme Disease beyond the 24 month limitation period set by the ERISA plan for limited physical and mental conditions.

First Circuit ERISA Win for Standard Insurance Company

In two separate class actions, in which Pierce Atwood separately represented Unum Life Insurance Company and Sun Life Assurance Company, the U.S. Court of Appeals for the First Circuit held that using Retained Asset Accounts (RAAs) to pay death benefits claims on group life insurance policies does not violate the Employee Retirement Income Security Act (ERISA), where the policies either require or permit payment by RAA.

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First Circuit Wins for Life Insurance Companies in ERISA Class Actions

Environmental litigation is a common occurrence in today's business climate. Our attorneys handle civil and criminal lawsuits and administrative proceedings relating to the contamination, protection, and restoration of natural resources; public and private remediation rights and obligations; licensing and permitting issues; toxic torts, including both personal injury and property damage claims; and establishing, contesting, and protecting property rights and interests. Pierce Atwood's attorneys have a wealth and depth of experience with respect to relevant federal and state laws including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), and analogous state statutes and regulations, and have handled both civil and criminal environmental cases in state and federal trial and appellate courts, and administrative agencies and boards.

Representative Experience

Pierce Atwood represented Portland Pipe Line Corp. in legislative opposition to, and in litigation challenging, an ordinance that prevents the use of its pipeline for transporting certain types of crude oil from Canada to tankers in Portland Harbor. Portland Pipe Line Corp. withdrew the lawsuit in July 2021.

Challenge to Municipal Ordinance Preventing Loading of Crude Oil

Anne Meade v. S.D. Warren, et al. 00-018, Somerset County Superior Court, Maine, Docket No. CV-00-018. Mass tort case (not a class action) arising from a “cancer cluster,” alleging damages for personal injuries and illnesses allegedly resulting, inter alia, from exposure to toxic or harmful chemicals disposed of, emitted, or released at or from the Central Maine Disposal Corporation Landfill in Fairfield, Maine.

Defense of Mass Tort Case Alleging Injuries from Chemical Exposure

Defended individual against State of Maine criminal enforcement action for alleged illegal disposal and treatment of hazardous wastes.

Defense of Waste Disposal Criminal Action

Pierce Atwood obtained a favorable outcome for our clients at the First Circuit Court of Appeals in Penobscot Nation v. Mills, the case brought by the Penobscot Indian Nation asserting control over the use and water quality of the Penobscot River in Maine. On June 30, 2017, by a 2-1 vote, the First Circuit panel affirmed the Maine U.S. District Court’s ruling that the tribe’s claims are barred by the 1980 Maine Indian Claims Settlement Act. The First Circuit majority also rejected the tribe’s claim that the state has interfered with the tribe’s sustenance fishing rights. Pierce Atwood represents a coalition of municipal and private wastewater discharge licensees on the Penobscot River.

Favorable Ruling in Penobscot Nation v. Mills at First Circuit Court of Appeals

Since 2017, Pierce Atwood has represented Avangrid Networks, Inc. and its affiliates CMP and NECEC Transmission LLC on all aspects of the development of the New England Clean Energy Connect (NECEC), a $1 billion, 147-mile high-voltage direct current transmission line that will interconnect the New England transmission system with the Hydro-Quebec (HQ) transmission system at the Canadian border in western Maine. The NECEC will deliver 1,200 MW of hydropower generated by Hydro-Quebec to the New England grid around the clock for at least 40 years. As found by the Maine PUC, this project promises to reduce the cost of electricity in Maine and New England by tens of millions of dollars each year, increase the reliability of the New England electric grid, and reduce greenhouse gas emissions by 3.0-3.6 million metric tons annually (the equivalent of removing 700,000 cars from the road).

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New England Clean Energy Connect

Represented S.D. Warren (now known as Sappi North America) as Petitioner both on brief and orally in this U.S. Supreme Court case concerning the ability of state environmental agencies under the Clean Water Act to regulate federally licensed hydroelectric dams.

S.D. Warren v. Maine DEP at U.S. Supreme Court

Served as local counsel to ConocoPhillips in successful defense of CERCLA contribution claims.

Successful Defense of CERCLA Contribution Claims

Pierce Atwood represents companies and individuals in connection with federal and state criminal and regulatory investigations, enforcement matters, and federal securities and commodities cases. We provide comprehensive services to clients that receive subpoenas or other requests for information from federal or state regulators. Although we seek to address and resolve issues and concerns raised by government prosecutors and regulators before a prosecution or enforcement action begins, that is not always possible. We have extensive experience in investigating and litigating all forms of government inquiry and enforcement from the investigative stage through the grand jury process and, if necessary, trial.

The matters we handle range from alleged environmental crimes, banking and financial crimes, securities and commodities matters, ERISA matters, False Claims Act investigations and qui tam actions, securities fraud investigations, health care fraud investigations, food and drug investigations and antitrust investigations. Regardless of the type of matter, Pierce Atwood has a proven record of helping clients avoid, resolve, and mitigate the impact of government investigative and enforcement proceedings. 

IP Disputes & Litigation

Pierce Atwood has extensive experience in all facets of insurance-related litigation. Whether representing an insurance company, a corporate insured, or an insurance agent, Pierce Atwood provides effective and practical legal services at the trial court level or on appeal in cases ranging from declaratory judgment actions, breach of contract suits, uninsured motorist claims, and extra-contractual litigation. Pierce Atwood consistently obtains successful results for clients whether it is overturning a large jury verdict in a bad faith disability insurance case, defending a class action for extra-contractual remedies, or prosecuting or defending a coverage case.

Pierce Atwood attorneys litigate insurance coverage and benefit disputes involving life, health, property/casualty, errors & omission, CGL, reinsurance and director & officer lines. Our experience extends to litigating ERISA and non-ERISA disputes in courts nationwide.

Representative Experience

Pierce Atwood won an insurance coverage appeal to the Massachusetts Appeals Court for our client, an insured food processing company. The appeal turned on the issue of whether an unexplained cause of damage to property constitutes an “occurrence” under a commercial general liability (CGL) insurance policy. The appeals court reversed summary judgment that the trial court entered in favor of the insurer, and remanded the matter to the trial court for further proceedings. The decision is significant because it is the first in the country where the court ruled that an insured’s liability based on application of the res ipsa loquitur doctrine could be sufficient to establish an “occurrence” under a CGL policy, despite not knowing the actual cause of damage. This is an important decision that is extremely beneficial to policy holders.

Appeals Court Victory in Insurance Coverage Dispute

The First Circuit affirmed summary judgment for our client Standard Insurance Company in a disability benefits case. The court held that Standard was not liable for payments of benefits to treat Chronic Lyme Disease beyond the 24 month limitation period set by the ERISA plan for limited physical and mental conditions.

First Circuit ERISA Win for Standard Insurance Company

In two separate class actions, in which Pierce Atwood separately represented Unum Life Insurance Company and Sun Life Assurance Company, the U.S. Court of Appeals for the First Circuit held that using Retained Asset Accounts (RAAs) to pay death benefits claims on group life insurance policies does not violate the Employee Retirement Income Security Act (ERISA), where the policies either require or permit payment by RAA.

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First Circuit Wins for Life Insurance Companies in ERISA Class Actions

Pierce Atwood partner Michael Daly successfully represented an insured food processing company in an appeal before the Massachusetts Appeals Court to obtain insurance coverage for accidentally damaging its customer’s product.  The appeal turned on the issue of whether an unexplained cause of damage to property constitutes an “occurrence” under a commercial general liability (CGL) insurance policy.

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Mass. Appeals Court Decision on Definition of ‘Occurrence’ in CGL Policy

Pierce Atwood has an extensive history of successfully representing clients in all types of probate litigation matters, from guardianships, conservatorships, and adoptions to disputes over the validity or interpretation of Wills and Trusts.  

Please click here for more details on our Probate Litigation practice.

Products liability litigation is one of the most complex areas of litigation, with cases often involving scientific and technical issues combined with serious or even catastrophic personal injuries. Pierce Atwood's products liability group responds to these challenges by combining cutting-edge scientific and technical knowledge with extensive personal injury experience to deliver successful and cost-effective products liability defenses to our clients in trial and appellate courts.

From the outset of any given case, we work closely with clients manufacturing or distributing such products as vehicles, industrial equipment, pharmaceuticals, asbestos, aviation, latex medical equipment, chemicals, machinery, and forestry equipment, to identify goals, establish objectives, and promptly assess the strengths and weaknesses of each case as early as possible.

Real Estate & Land Use Litigation
Trade Secret & Competition Litigation

Our lawyers counsel clients on website and digital accessibility issues under the Americans with Disabilities Act (ADA), Twenty-First Century Communications and Video Accessibility Act (CVAA), and similar federal and state laws and regulations, and represent clients in the defense of related class actions. Our litigators have experience handling cases in the United States District Courts for the Eastern and Southern Districts of New York, where many of these federal cases are filed. For example, we have represented defendant companies in direct-to-consumer and retail industries in website accessibility lawsuits.

While the ADA requires that businesses and property owners generally open to the public (known as public accommodations) make their locations accessible for people with disabilities, the law was enacted in 1990, before conducting business and consumer transactions over the internet became commonplace. Since 1990, an ever-increasing number of products and services have been offered over the internet, and digital accessibility has become a concern for the platforms on which they are provided. Digital accessibility is the ability of a website, mobile application, or electronic document to be easily navigated and understood by a wide range of users, including those users who have visual, auditory, motor, or cognitive disabilities. As more aspects of our daily lives migrate to the internet, a growing number of plaintiffs have asserted that websites and applications are places of public accommodation under the meaning of the ADA, and court decisions and legislation concerning digital accessibility have made this a rapidly evolving area of law. These developments make it important for businesses to assess the accessibility of their websites, applications, and other digital platforms and to seek guidance concerning new developments in the law. 

Representative Experience

In a dispute involving a 17-year business relationship between companies in the plastic film industry, firm attorneys prevailed at trial and on appeal in this breach-of-contract case. When a firm client suspected it was being shortchanged by its materials supplier, the future of their small family business was at stake. Pierce Atwood stepped in and helped convince a jury in Rhode Island federal court to award $2 million in lost profits to our client and ensure that the 17-year contract would remain in force. The award and the contract helped ensure the future of this small business.

$2 Million Jury Verdict in Bet-the-Company Litigation

We successfully tried a NASDAQ-listed company's claims against an ASIC developer who had contracted to develop the client's next generation product. The 14 person jury returned a unanimous verdict in favor of our client for $36.7 million in damages, which is believed to be the largest verdict ever from a state court jury in Massachusetts. The jury also returned a verdict for the client rejecting the developer's approximately $7 million in counterclaims.

$36.7 Million Verdict for Public Company Client

John Bulman has been appointed sole arbitrator in an AAA large complex case dispute relating to the engineering, design, procurement and construction of a power plant in the Eastern U.S.

AAA Large Complex Dispute Concerning Power Plant EPC Issues

Pierce Atwood won an insurance coverage appeal to the Massachusetts Appeals Court for our client, an insured food processing company. The appeal turned on the issue of whether an unexplained cause of damage to property constitutes an “occurrence” under a commercial general liability (CGL) insurance policy. The appeals court reversed summary judgment that the trial court entered in favor of the insurer, and remanded the matter to the trial court for further proceedings. The decision is significant because it is the first in the country where the court ruled that an insured’s liability based on application of the res ipsa loquitur doctrine could be sufficient to establish an “occurrence” under a CGL policy, despite not knowing the actual cause of damage. This is an important decision that is extremely beneficial to policy holders.

Appeals Court Victory in Insurance Coverage Dispute

Represented US entity in distributorship dispute with UK company and its US sales and marketing subsidiary.  The matter was administered by ICDR and arbitrated in Rhode Island. Issues concerned reaching the correct respondent (which had approximately 13 related companies).  Received award for 100% of damages, plus attorney’s fees under Rhode Island statute, plus interest, and had the correct respondent liable for the award.  The matter is now in collection in the UK, which administers such awards under the New York Convention.

Arbitration Award for US Subsidiary of UK Company

John Bulman has been appointed to chair an arbitration panel regarding a large complex dispute involving development of a new petrochemical plant.

Arbitration Concerning New Petrochemical Plant

Represented one of two partners in partnership dispute pertaining to operation of P&C personal lines insurance agency.  Ultimately we secured an agreement to arbitrate the dispute, addressing liability and then issues of valuation for a divorce between the partners.  Secured findings in favor of our client and very successful award of damages (high six figures) for his interest in the agency.

Arbitration in Insurance Agency Partnership Dispute

John Bulman is serving as an arbitrator in a matter relating to the construction of a natural gas-fueled combined-cycle generating facility in New England.

Arbitration Regarding Construction of Generating Facility

John Bulman has been appointed the sole arbitrator in a large complex construction dispute involving a multi-unit residential condominium development project located in suburban Boston.

Arbitrator in Condominium Project Construction Dispute

Represented a construction manager seeking payment for labor and materials (plus profit) provided to a luxury condominium developer, prior to termination. Required to prove that the termination was for convenience and then to prove damages, which was challenging due to the manner in which financial records were maintained.  The developer offered nothing to settle until first day of hearings, when he offered slightly less than $1 million.  Ultimately an award was issued providing for payment to construction manager of slightly more than $5 million, representing almost a 100% recovery plus interest.

Award for Construction Manager in Payment Dispute

Represented the developer of limited service hotel in dispute with construction manager, leading to construction manager’s termination of the contract, arguing material breaches by the developer. The matter went through mediation and then arbitration with award being issued in favor of developer for cover. The proceeding also involved peripheral disputes with various trades who had liens on the project.

Award for Developer of Limited Service Hotel

Pierce Atwood represents a large national bank in an overdraft fee MDL pending in the District of South Carolina.  During the course of the representation, we obtained dismissal of plaintiffs’ claims based on the bank’s past practice of ordering debits from high to low, and of usury claims based on the bank’s assessment of additional fees after a customer’s checking account continues to have a negative balance ten business days after the initial overdraft.  In addition, we successfully opposed plaintiffs’ motion to certify a class seeking actual damages for alleged violation of the Electronic Funds Transfer Act. 

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Bank Overdraft Fee Litigation

Served as chair of arbitration panel addressing claims by public owner against Design Builder of waste-to-energy generating equipment.  Following issuance of award against Design Builder, at the request of the Design Builder, successfully mediated a resolution in a follow-up dispute with its vendors/subcontractors and consultants.

Chaired Arbitration Panel Concerning Waste-to-Energy Generating Equipment

Pierce Atwood represented Portland Pipe Line Corp. in legislative opposition to, and in litigation challenging, an ordinance that prevents the use of its pipeline for transporting certain types of crude oil from Canada to tankers in Portland Harbor. Portland Pipe Line Corp. withdrew the lawsuit in July 2021.

Challenge to Municipal Ordinance Preventing Loading of Crude Oil

In a case that should be of interest to manufacturers and distributors, and especially to suppliers of building products, Pierce Atwood’s class action defense team defeated class certification in a building products case in the District of Massachusetts. Plaintiffs alleged defective design and manufacture of decking sold by our client. After extensive fact and expert discovery, Plaintiffs filed a motion for class certification, and a hearing was held. On September 21, 2015, District Judge Denise Casper issued her decision denying Plaintiffs’ motion, ruling that individualized issues of causation and injury precluded findings of commonality, typicality and adequacy under Federal Rule of Civil Procedure 23(a). The judge based her ruling, in part, on evidence that only a small percentage of purchasers had reported problems with the decking, and that almost all of the warranty claims those purchasers submitted had been honored.

Class Certification Victory in Building Products Case

John Bulman has been asked to serve as an arbitrator in a consumer dispute based on the Fair Debt Collection Practices Act regarding alleged violations of the Telephone Consumer Protection Act and breach of contract.

Consumer Dispute Concerning Fair Debt Collection Practices Act
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