Marcus Clegg is currently seeking an associate. The ideal candidate will be a self-starter with three to five years of experience in practice, strong drafting and legal research skills and an eagerness to work on a broad array of matters. Candidates must be admitted to the Maine bar or willing to sit for the next available bar exam.
Interested candidates should email resume, writing sample and references to jlc@marcusclegg.com.
We are proud to report that Benchmark Litigation, a peer-review publication focused exclusively on US litigation, has listed three MCM attorneys as “stars” in its 2013 edition. George Marcus and Lee Bals have been listed as “Local Litigation Stars” for Maine, and Dan Rosenthal has been listed as a “Future Star” for Maine. Listings in Benchmark Litigation are derived from the publication’s extensive interviews with litigators and clients to identify leading litigators and firms.
Chambers and Partners, a leading publisher of global guides to the legal profession, has once again listed MCM senior partner George Marcus in the top tier of Corporate M&A/Bankruptcy practitioners in Maine. In its USA Guide, Chambers describes George as “one of Maine’s leading bankruptcy lawyers” and also reports that one of its sources said, about George, “If you want to beat him you have to be very quick on your feet!”. MCM is pleased to report that both statements are true. Read more about Chambers’ report here, and about George here.
A federal bankruptcy court has ruled in favor of MCM’s clients in denying a bankruptcy trustee’s effort to expand its claims in a complex claim pending in Delaware. The litigation trustee for DBSI Inc. accuses broker-dealers, including MCM clients, of profiting from a Ponzi scheme that drove DBSI, a real estate investment firm, into bankruptcy. Most recently, the trustee sought to add hundreds of defendants to the suit on the basis of alleged fraudulent transfers by the broker-dealers. Judge Peter J. Walsh, ruled, after considering an opposition to the trustee’s motion to amend filed by MCM on behalf of its clients, that the trustee had not definitively linked the supposed transfers to the broker-dealers, and the subsequent transfers to the proposed new defendants. MCM lawyers George Marcus and David Johnson handled the matter. Read more about George, Dave and Andrew by clicking on their names, and read more about the case below.
Hearing on Trustee’s Motion to Amend
On May 15, 2012, MCM filed a plan of reorganization and disclosure statement on behalf of its client, United Systems Access Telecom Inc., a competitive local telephone carrier, in Chapter 11 proceedings in the United States Bankruptcy Court for the District of Maine. The filing of the plan follows the settlement of significant litigation between USAT and Fairpoint Communications, the incumbent telecommunications carrier in the region. The plan, when confirmed, will allow USAT to continue as a competitive telephone service option for customers in Maine, New Hampshire and Vermont. MCM lawyers George Marcus, David Johnson and Andrew Helman handled the matter for USAT. Read more about George, Dave and Andrew by clicking on their names.
MCM attorneys recently briefed and argued a case of first impression before Maine’s highest court: whether corporate directors and officers, accused of fraud in connection with the redemption of selling shareholders’ stock, may enforce a general disclaimer of reliance in deal documents associated with the purchase of the stock. The case follows others around the United States, examining whether, and to what extent, such “big-boy” no-reliance provisions are enforceable by corporate fiduciaries, when the fiduciaries are accused of fraud.
MCM represents two former shareholders of Bushmaster Firearms, Inc., who allege that after selling their stock, they discovered that that the company’s corporate officers and directors had misrepresented and withheld key information about the company in order to buy the stock for less than it was worth. Substantially all of the company’s assets were later sold to outside investors at a price far in excess of the overall valuation of the company based on the shareholders’ sale price.
The settlement agreement contained a provision in which the sellers disclaimed reliance on certain information or representations by the buyers. In this case, Justice A. Mark Horton of the Business and Consumer Court found that the selling shareholders had established a prima facie case of fraud and breach of fiduciary duty, but held that the so-called “big-boy provision” prevented the plaintiffs from proving reliance, which is a necessary element of any fraud case.
Oral argument in the Law Court, held on May 9, illustrated the way “big-boy provisions” pit important values against each other. The justices recognized that it has long been the rule in Maine that fraud vitiates all that it touches—even a settlement agreement and a release procured by fraud—and also that corporate fiduciaries hold solemn duties to shareholders, including the obligation to be truthful, even to the fiduciary’s detriment. Chief Justice Leigh Saufley asked whether, in light of recent history in the area of corporate governance, more emphasis should be placed on honesty. On the other hand, the justices wrestled with the notion that sophisticated parties represented by able counsel should be able to resolve a dispute once and for all, and utilize a “big-boy” provision to try to limit future disputes. To listen to an audio recording of the oral argument, click on the links below.
The Law Court must now decide whether big-boy provisions should be permitted to bar claims for fraud and breach of fiduciary duty, where such provisions appear in the very agreement that the shareholders allege was the subject of the fraud and breach of fiduciary duty.
The case is Barr et al. v. Dyke et al., Maine Supreme Judicial Court, Law Court Docket No. BCD-11-525, on appeal from the Maine Business and Consumer Court.MCM attorneys George Marcus, Daniel Rosenthal, and Andrew Helman handled the matter for the shareholders. Learn more about George, Dan and Andrew by clicking on their names.
Super Lawyers Magazine, available online at www.superlawyers.com, has again named MCM’s senior lawyer George Marcus as a New England Super Lawyer. Super Lawyers are chosen based on peer recognition and professional achievement, through a multi-phase process that includes independent research and peer nomination and evaluations. Read more about George here.
In a decision issued in March 2011, Justice John Nivison of Maine’s Business and Consumer Court affirmed a ruling of Maine’s Motor Vehicle Franchise Board, holding that MCM client Ford Motor Company did not violate a provision in Maine’s automobile dealer franchise laws that outlaws so-called “two-tier pricing”. Justice Nivison ruled that Ford acted lawfully when it required dealers, as a condition to receiving certain parts pricing discounts, to provide Ford with data to be used in analyzing dealers’ market share and areas of potential growth. Justice Nivison ruled that the use of incentives, available to all dealers, did not constitute the kind of “two-tier pricing” that the law prohibits, and that there was nothing particularly onerous about Ford’s program. Ford was represented in this matter by MCM partner Daniel Rosenthal. Learn more about Dan here.
MCM is pleased to announce that Andrew Helman has joined the firm. Andrew brings excellent academic credentials, research and practical lawyering skills, and dedication to his efforts on behalf of MCM’s clients. He is a graduate of the University of Massachusetts at Amherst, and the University of Maine School of Law. Learn more about Andrew here.
On September 15, 2010, U.S. News & World Report launched its Best Law Firms rankings. After surveying thousands of clients, in-house corporate lawyers, and law firms, the magazine rated 8,782 law firms throughout the United States, and we are pleased to announce that MCM was given a “Tier 1” rating for Maine law firms – the highest rating available, for our practice in Bankruptcy and Creditor/Debtor Rights/Insolvency and Reorganization Law. For more information about the U.S. News survey, go to http://bestlawfirms.usnews.com/