Appellate & Amici | Pierce Atwood

Pierce Atwood’s Appellate & Amici team leverages the breadth and depth of their experience and insight to guide clients through each step of the appeals process. Collectively, our Appellate & Amici team has argued or briefed appeals at all levels of appellate courts across the country, having appeared in cases before the U.S. Supreme Court, numerous U.S. Circuit Courts of Appeal, and various state Supreme Courts. The Pierce Atwood team includes attorneys who bring inside perspective into the appellate process as former law clerks to federal and state appellate judges.

Pierce Atwood’s appellate practice has a tradition of excellence. The U.S. Supreme Court has selected Pierce Atwood lawyers to serve as special masters in original jurisdiction cases an unprecedented five times, and several Pierce Atwood attorneys have been appointed to the Maine Supreme Judicial Court or the United States Court of Appeals for the First Circuit. Our tradition of excellence continues today, bringing praise from our clients and recognition from U.S. News – Best Lawyers® “Best Law Firms” with a tier 1 ranking for appellate practice in Portland, Maine.

Building on this experience, insight, and tradition of excellence, we work with clients and trial counsel to develop a successful strategy, navigate the appeals process, and present a compelling case using effective written and oral advocacy. We regularly represent clients in a wide variety of judicial and administrative appeals. Recognizing the importance of strategic amicus briefs, we also regularly submit briefs on behalf of businesses, trade associations, and advocacy organizations in federal and state courts.

Areas of Expertise

From admiralty to antitrust, banking to bankruptcy, commercial to constitutional, energy to environmental, tax to trademark, our lawyers have argued successfully at the appellate level in a wide variety of practice areas and industries. Representative recent matters include:

Penobscot Nation v. Frey, 3 F.4th 484 (1st Cir. 2021) (representing a coalition of municipalities and other river users in an en banc proceeding before the First Circuit regarding the Penobscot Nation’s reservation boundaries)
Avangrid Networks, Inc. v. Dunlap, 2020 ME 109 (representing Maine’s largest utility in challenging the use of the direct initiative process to revoke a permit for a $1 billion power line)
Payne v. Dunlap, 2020 ME 110 (representing Maine voters in defending the exercise of a people’s veto under the Maine Constitution)
Penobscot Nation v. Mills, 861 F.3d 324 (1st Cir. 2017) (representing coalition of municipalities and other river users defending against an action brought by the Penobscot Nation asserting that its reservation boundaries extended into the Penobscot River in Maine)
Carnicella v. Mercy Hospital, 2017 ME 161 (representing hospital defending against discrimination claim)
Opinion of the Justices, 2017 ME 100 (representing Republican Caucus of the Maine House of Representatives in striking down ranked choice voting as unconstitutional)
Valente v. T.D. Bank, N.A, 92 Mass.App.Ct. 141 (2017) (representing bank defending against claim of negligence in claim governed by UCC § 4-406(f))
Arundel Valley, LLC v. Branch River Plastics, Inc., 2016 ME 175 (representing a manufacturer and distributor of insulated roofing panels in complex construction dispute)
Merrimon v. Unum Life Ins. Co. of Am., 758 F.3d 46 (1st Cir. 2014), and Vander Luitgaren v. Sun Life Assur. Co. of Canada, 765 F.3d 59 (1st Cir. 2014) (representing life insurance companies in ERISA litigation regarding the use of retained asset accounts to pay death benefits)
America v. Sunspray Condominium Ass’n, 2013 ME 19 (representing condominium association against claims for breach of fiduciary duty, breach of contract, and negligence)

The firm’s appellate practice extends not just to appeals from lower courts to appellate courts, but the specialized area of judicial appeals from regulatory decisions issued by federal, state and local administrative bodies. We have argued hundreds of such appeals, drafting the chapter on state administrative appeals in A Practical Guide to Superior Court Practice in Maine (MCLE). Representative regulatory appeals include:

Sierra Club v. U.S. Army Corps of Engineers, 997 F.3d 395 (1st Cir. 2021) (representing utility company defending against challenge to a permit issued under the Clean Water Act)
NextEra Energy Res., LLC v. Maine Public Utilities Comm’n, 2020 ME 34 (representing utility company defending against challenge to certificate of public convenience and necessity issued by PUC)
Conservation Law Foundation v. Public Utilities Commission, 2017 ME 109 (representing gas utility in affirmance of PUC decision)
Fox Islands Wind Neighbors v. Department of Environmental Protection, 2015 ME 53 (representing wind generator permittee defending against challenge to condition compliance order)
Navy Yard Four Associates, LLC v. Department of Environmental Protection, 88 Mass. App. Ct. 213 (2015) (representing owner of luxury apartment building in challenge to validity of state waterways regulations)
Watts v. Board of Environmental Protection, 2014 ME 91 (representing hydroelectric facility permittee defending against challenge to water quality certification under the Clean Water Act and state law)
Black Oak Energy, LLC v. Federal Energy Regulatory Commission, 725 F.3d 230 (D.C. Cir. 2013) (representing virtual traders in challenging FERC recoupment orders)
Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County, 128 S.Ct. 2733 (2008) (representing California Electricity Oversight Board in challenge to decision of the Federal Energy Regulatory Commission)
Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007) (representing coalition challenging EPA Clean Water Act decision)

Increasingly, clients recognize the importance of having a say in cases in which they are not direct parties, but the outcomes of which may affect their interests in profound ways. Our practice includes a robust amici component, representing government officials and bodies and legal and corporate coalitions in presenting the views of interested individuals and entities as friends of the court. Representative appeals in which we have filed briefs on behalf of amici curiae include:

Courthouse News Service et al. v. Glessner et al., No. 21-1624 (1st Cir.) and Courthouse News Service et al. v. Gabel et al., No. 21-3098 (2d Cir.) (representing the Conference of Chief Justices in First Amendment challenge to court electronic filing rules)
The Bank of New York Mellon v. Shone, 2020 ME 122 (representing The Maine Bankers Association in foreclosure action)
Organic Consumers Ass’n v. Mowi ASA, No. 2020 A 003368 B (D.C. Sup. Ct.) (representing non-profit aquaculture trade association in deceptive marketing action)
Cumberland Farms, Inc. v. Town of Yarmouth Board of Health, 2019-P-0020 (Mass. App. Ct.) (representing regional trade association challenging a municipal agency’s administrative proceedings)
Ross v. Acadian Seaplants, Ltd., 2019 ME 45 (representing Maine Department of Marine Resources in action pending before the Maine Supreme Judicial Court addressing the ownership of seaweed in the intertidal zone and the scope of the public easement under the Colonial Ordinance)
Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018) (representing GLAD in support of state public accommodation law)
Appeal of New Hampshire Electric Cooperative, Inc., 164 A.3d 103 (N.H. 2017) (representing utilities in tax appeal)
State v. Sudsbury, 2016 ME 25 (representing the American Civil Liberties Union in reversal of criminal conviction)
Galouch v. Department of Professional and Financial Regulation, 2015 ME 44 (representing the Maine State Chamber of Commerce defending against Whistleblowers’ Protection Act claim)
Bank of America, N.A. v. Cloutier, 2013 ME 17 (representing the Federal Home Loan Mortgage Corporation in foreclosure action)
Hebron Academy, Inc. v. Town of Hebron, 2013 ME 15 (representing Maine Association of Independent Schools in tax appeal)

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.

First Circuit Wins for Life Insurance Companies in ERISA Class Actions

Beginning in 2017, Pierce Atwood has represented Avangrid Networks, Inc. and its affiliate CMP on all aspects of the development of the New England Clean Energy Connect (NECEC), a $950 million, 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. Our work began by taking the lead in preparing the proposal for the project in a competitive solicitation conducted by the Massachusetts Department of Energy Resources (MA DOER) and Massachusetts electric distribution companies (EDCs) for up to 9,450,000 MWh of clean energy generation and associated transmission. In early 2018, the MA DOER and the EDCs selected the NECEC as the winning bid in the solicitation. Thereafter, Pierce Atwood has assisted CMP to negotiate the definitive transmission services agreements (TSAs) with the EDCs and HQ for the project.

New England Clean Energy Connect

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.

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