With the launch of this blog, we seek to discuss issues relating to appeals and appellate law in Maine, including the activities and decisions of the Maine Supreme Judicial Court and First Circuit Court of Appeals relevant to Maine, and other participants in the Maine appellate community.

Is the Hotel California covered in lead paint?

It may be the summer doldrums in terms of issuing decision, but an interesting petition for cert was filed last week that may have a decent chance of being granted.  ConAgra Grocery Products Co. and NL Industries, Inc. v. People of California.

It certainly has firepower behind it, with Paul Clement as Counsel of Record, along with a host of others from Kirkland & Ellis and Reed Smith.   It also involves substantial $$ – hundreds of millions of dollars.  And it relates to an issue that I worked on years ago with a then-partner at PA named William Kayatta, now of the First Circuit:  to what extent can companies who long ago manufactured lead pigment or paint or their successors be held liable now in public nuisance for lead paint on buildings today?  The folks at Jones Day also filed a petition for cert in the same case.  Sherwin-Williams Company v. People of California.

The First Amendment is different.

Playing catch up in our perusal of recent First Circuit and Law Court decisions, a First Circuit decision involving a defamation claim caught our eye. Sindi v. El-Moslimany, No. 16-2347.  The panel were Judges Barron, Selya and Stahl. Judge Selya wrote the majority decision for himself and Judge Stahl, with Judge Barron dissenting in part. Eugene Volokh, a professor at UCLA, filed an amicus brief on behalf of himself.

The facts, in a nutshell, were that Defendant #1 and her husband hosted a Thanksgiving dinner at their home in 2010, with the plaintiff, a prominent Saudi scientist and entrepreneur then a visiting scholar at Harvard University. Several months later, Defendant #1 came to believe that her husband and the plaintiff were engaged in a “meretricious” relationship. #1 and her mother then launched a series of web posts accusing the Plaintiff of various untrue things.   Plaintiff sued for defamation, intentional infliction of emotional distress, tortious interference with contract, and tortious interference

Alexander V

Well, we had a little hiatus while we were sucked into a whirlpool of briefing and other activity, but things have calmed down now, and as a nice present waiting for me was Justice Alexander’s Fifth edition of Maine Appellate Practice.  This edition talks about the new rules, and so if you’ve been skipping an edition or two, I’d invest in this one.  All the proceeds go to Cleaves, a worthy cause, so they make nice Christmas presents, too!

No ping pong and no dope

We may be entering the summer vacation period (although the Law Court I am told is having a July argument session), but I’ve been busy as a beaver. But with time now to breathe, here are a couple of recent decisions of note interpreting Maine law, one from the First Circuit and the other from the Law Court:

Ping pong-less review

Kudos to Pierce Atwood’s Jim Erwin in the affirmance of summary judgment for an employer in a whistleblower retaliation case. Theriault v. Genesis Healthcare LLC, No. 17-1717. See 26 M.R.S. § 833.

On appeal, the plaintiff argued that Judge Singal had granted summary judgment in error because she took the position that under Maine law, the court should look only at the plaintiff’s evidence when reviewing a summary judgment motion. The defendant said no, the Court looks at all the evidence. We all know the McDonnell Douglas burden


The Maine SJC held its every-few-years conference on appellate practice in Maine on May 2. Of course we were there, so here’s the run down.

A big chunk of time was spent on e-filing –when it’s coming, where, how it will work. Privacy is the key issue. Given that state courts are the forum for addressing many sensitive issues relating to the human condition, and with many parties representing themselves pro se, the essentially self-policing approach of the federal system isn’t going to fly. The Maine approach is still a work in progress, so there’s plenty of time to get your two cents in if you’d like. There’s a hearing June 7 in Augusta if you want to say your piece.

Other brief items of note:

  • Justice Alexander’s latest edition of his appellate treatise is now at the printer, so keep an eye out to get your copy.
  • Make sure you bind your briefs correctly. This isn’t the first

Be my friend

We have blogged in the past regarding amici briefs, see e.g. The best amici brief ever.  In the recent DACA argument before the Supreme Court, two such briefs are of particular note.

First, the National Law Journal reports how in the oral argument, Justice Breyer gave a shout out to an appellate practitioner by referencing “families in the Lisa Blatt brief.”  In the world of Supreme Court practice, this is an honor equal to a nobleman receiving the privilege of handing Louis XIV his sock when he got dressed, so whoo hoo for her.  (As we have blogged on before, commentators have studied the insular world of the Supreme Court, which only wants a handful of lawyers to appear before them, their ex-clerks, preferably with a stint in the Solicitor General’s office, who went to the right schools (i.e. Harvard or Yale), and know the secret handshake.  See At America’s court of last resort, a handful of lawyers

En banc Snoozefest

Last week the First Circuit re-heard the civil rights claim by Maine Gubernatorial candidate and ex-Speaker of the House Mark Eves against current Governor LePage.  As we blogged recently, the District Court dismissed the claim; the First Circuit panel affirmed; and the full Court granted a motion for rehearing en banc in an order that included lots of specific questions for the parties to re-brief.

One would think that the argument on rehearing would be a rootin’ tootin’ bundle of excitement.  The First Circuit only averages about one en banc hearing a year, and this one has some interesting features to it, with our colorful Governor making some choice comments about Eves, leading to this litigation.

But one would be wrong.  It was a yawner.  The link to the argument is here, although it will go away soon –  Eves v. LePage, Case No. 16-1492 Oral Argument.

First, as we mentioned previously, for reasons unknown, Judge

Consolidation, Certification, and Marriage Metaphysics

Recent decisions from the Supreme Court and Maine Law Court remind appellate jockeys of some important points when determining when a judgment is final and appealable.


Let’s start with Maine, and a decision about Rule 54 certification:  Kittery Point Partners, LLC v. Bayview Loan Servicing, LLC, 2018 ME 35.  This case involved one suit against three defendants.  Two of the three defendants moved for summary judgment.  The Superior Court (Douglas, J.) granted their motion, and in doing so said that the judgment was final as to the claims between the plaintiff and these two parties, and there was no just reason for delay in entering final judgment as to them.  The plaintiff appealed.

Not so fast, said the SJC.  A judgment isn’t final until all the claims against all the parties are decided.  A trial court can certify appeal of a partial final judgment under Me. R. Civ. P. 54(b)(1) The

Stephen Hawking and the Law of Regulatory Takings

In homage to Stephen Hawking, let us discuss a recent regulatory takings case.  While physical takings law is logical, and thus the legal equivalent to Newtonian physics, regulatory takings can make quantum physics look like a rational piece of cake.

Recently, we blogged on a Business and Consumer Court ruling regarding the need to give the Attorney General notice of declaratory judgment actions seeking a ruling that an ordinance is unconstitutional. (Your serve )  Now I have reviewed the ruling in that case on the merits, and it seems to me that the cause of action wasn’t a dj action at all, and so the notice requirement shouldn’t’ve applied in the first place. (MacQuinn, Inc. vs. Town of Lamoine, No. BCD-CV-2017-05, Decision (Feb. 13, 2018)).

As you can see, the plaintiff in MacQuinn claimed an as-applied regulatory taking without just compensation.  The plaintiff is not claiming that there couldn’t be a taking