Mirror of Justice

NRCM Gives Award to Law Firms in Portland and D.C. for River Restoration Efforts

July 19th, 2009 at 10:37am Under Environmental Law

Augusta, ME – Two law firms, Verrill Dana in Portland, Maine, and Wiley Rein in Washington, D.C., have been awarded a 2008 Natural Resources Council of Maine Environmental Award for their tireless efforts to free the Sebasticook River by removing the Fort Halifax Dam in Winslow.

For about 100 years, the Fort Halifax Dam at the mouth of the Sebasticook River in Winslow blocked passage of salmon, striped bass, sturgeon, shad, alewives and other sea-run fish. The dam generated very little power and did not earn enough money to justify the construction of an adequate fish lift.  So, in 2002, Florida Power and Light, which owned the dam, applied to remove it and in 2004, the Federal Energy Regulatory Commission approved removal of the dam, which should have marked the beginning of the rebirth of the native sea run fishery in the Sebasticook River.

But a small group of landowners, who preferred an impounded pond to a free-flowing river, appealed the government’s decision to the Washington, D.C. Circuit Court of Appeals. Fortunately, attorney Chuck Verrill and his team from Wiley Rein—Evan Cochran, Paul Dame and William Grimaldi—took the lead on that case for NRCM and the other organizations that make up the Kennebec Coalition (American Rivers, Atlantic Salmon Federation, and Trout Unlimited and its Kennebec Valley Chapter). The efforts of these attorneys helped ensure that the court eventually reached a decision to uphold the removal order.

This same handful of landowners also sued the Governor and numerous state agencies for entering into the groundbreaking agreement that required fish passage at Fort Halifax.  The same agreement resulted in the successful restoration of 17 miles of the Kennebec River through the removal of the Edwards Dam in Augusta in1998, and the installation of fish lifts at three other dams in the Kennebec watershed.

The lawsuit against the Governor went all the way to Maine’s Supreme Judicial Court, where William Harwood and Nora Healy from Verrill Dana intervened successfully on behalf of NRCM and our coalition partners. Mr. Harwood and Ms. Healy worked tirelessly through this process once again when the same group of landowners appealed the State of Maine’s dam removal permit, and again this case went all the way through Maine’s Supreme Judicial Court. Again, it was the hard work and dedication of these dedicated attorneys that helped ensure a positive outcome in the case.

Yet another battle appeared in the removal of the dam came when an out-of-state hydropower firm got involved.  And, here again, as before, all of these attorneys worked together seamlessly in their efforts. Thanks to their dedication, on July 17, 2008, the Fort Halifax Dam came down.

“We have seen how quickly and dramatically rivers can recover when a dam is removed,” says NRCM Executive Director Brownie Carson. “In the Kennebec, once choked by the Edwards Dam, we see not only our native-sea-run fish returning to spawn, but also thriving populations of eagles and Osprey, mammals, and other wildlife that rely upon healthy rivers. We look forward to seeing this same great change in the Sebasticook, thanks to these attorneys at Verrill Dana and Wiley Rein. NRCM is honored to give them a 2008 Natural Resources Council of Maine Environmental Award.”

Business Law Alert: New Compliance Deadline Approaches For FTC Identity Theft “Red Flags” Rule

July 14th, 2009 at 08:53am Under Business Law

In late 2007, the Federal Trade Commission (”FTC”) issued its “Red Flags” rule, which imposes identity theft regulations on a class of businesses that the FTC defines as “Creditors.” Many businesses are not aware, however, that the FTC’s expansive definition of Creditor sweeps into the Red Flags rule a broad array of industries, including professional services providers (for example, accounting and law firms), small businesses, non-profits, and retailers of goods. In fact, the FTC estimates that over 11 million businesses are covered by the new rule. The FTC will enforce its identity theft “Red Flags” rule beginning May 1, 2009.[1] * * *The “Red Flags” rule (found at 16 C.F.R. § 681) requires any “Financial Institution” or “Creditor” that offers or maintains “Covered Accounts” to develop written identity theft prevention and detection programs to identify, detect, prevent, and respond appropriately to identity theft Red Flags. “Red Flags” are patterns, practices, or specific activities that indicate possible identity theft; for example, when a customer complains about a bill for goods or services the customer claims never to have received.A “Creditor” is a person who “regularly extends, renews, or continues credit,” including the right to purchase property or services and defer payment. The FTC’s current interpretation of “Creditor” is very broad. According to one FTC attorney, a Creditor includes anyone who regularly provides goods or services without requiring immediate payment. Both for-profit and non-profit entities may be affected. In fact, a company or organization may fall into the category of a Creditor that offers or maintains a Covered Account simply by permitting customers to pay for services by means of payment plans or monthly invoices. Although certain industry groups have challenged the FTC’s broad interpretation of the term “Creditor,” to date, the FTC has not issued an exception for any particular industry.A “Covered Account” is also defined broadly, and includes “(1) [a]n account . . . primarily for personal, family, or household purposes, that involves or is designed to permit multiple payments or transactions . . ., or (2) [a]ny other account . . . for which there is a reasonably foreseeable risk to customers or the safety and soundness of the creditor from identity theft, including financial, operational, compliance, reputation, or litigation risks.”If a business is a Creditor, it must periodically determine whether it offers or maintains Covered Accounts. Although a “one-time” transaction (such as a typical retail sale) might not constitute a Covered Account, a customer account that provides for multiple transactions or payments and results in debt probably does. If a Creditor determines that it offers or maintains Covered Accounts, the Creditor must institute an identity theft prevention and detection program to address the risks of identity theft. The program must include reasonable policies and procedures to (1) identify Red Flags and incorporate them into the program, (2) detect and respond appropriately to Red Flags, and (3) periodically update the program. In addition, a Creditor must ensure that its third-party service providers have reasonable programs for detecting, preventing, and mitigating the risks of identity theft associated with the Creditor’s Covered Accounts.Fortunately, the Red Flags rule is risk-based and allows for “flexible implementation.” Thus, a Creditor should utilize policies and procedures that are “reasonable” and “appropriate” in light of the Creditor’s activities, the types of Covered Accounts at issue, and the relative risk of identity theft. The FTC has stressed that identity theft programs do not necessarily need to be complex or technology-driven. In fact, a Creditor may incorporate its already-existing policies, procedures, and technology. Some procedures may be as simple as checking a person’s identification before opening a new customer account. The FTC does not expect that the Red Flags rule will present a substantial burden for a Creditor that is not subject to significant identity theft risk, for example, a Creditor that does not maintain sensitive customer information. The FTC also does not expect the rule to present a significant burden for a Creditor that has already instituted policies and procedures to address identity theft risk.Pending further guidance from the FTC, businesses should carefully consider whether they are subject to the Red Flags rule and, if so, what their compliance obligations will be. It should be understood, however, that in all cases the FTC requires that a Creditor have a written identity theft program that has been initially approved by the Creditor’s board of directors or an appropriate board committee, and that subsequent development and administration of the program take place at a board or senior management level.Be Mindful of Changing Requirements. With identity theft becoming an increasing concern in virtually all industries, businesses that maintain or process sensitive customer information (such as social security or credit card numbers) should carefully assess their policies and procedures for protecting customer information. In addition, businesses that operate in multiple states should be aware that most states, in addition to the FTC, have statutes and regulations regarding identity theft. For example, over forty states, including Maine, require businesses to take certain steps, such as notification, when a data breach has compromised certain customer information.Recently, the State of Massachusetts issued even stricter regulations, requiring businesses to develop “comprehensive information security programs” to protect personal information such as social security, driver’s license, and financial account numbers. These regulations, found at 201 C.M.R. § 17.00, are not limited to Massachusetts-based businesses. Rather, they apply broadly to persons “who own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts.” Massachusetts is requiring compliance with these regulations by January 1, 2010.Conclusion. Businesses that use or maintain personal information susceptible to identity theft should be mindful of this rapidly evolving area of law, and they should consider seeking assistance from legal counsel to determine how best to comply with state and federal requirements. If you have questions regarding the effect of laws related to identity theft on your business, such as the Red Flags rule, please contact an attorney in the Business Law Group at Verrill Dana, LLP. For further information please contact the Verrill Dana attorney listed below:Alistair Y. RaymondBusiness Law Group (araymond@verrilldana.com)

Twenty-Eight Verrill Dana Attorneys Recognized as New England Super Lawyers, Most of Any Law Firm Based in Maine

July 12th, 2009 at 11:37pm Under Administrative Law

Portland, ME (November 26, 2007) –  Twenty-eight lawyers from Verrill Dana, LLP have been selected by their peers for inclusion in the 2007 edition of New England Super Lawyers.  This impartial and well-respected annual guide recognizes the top five percent of lawyers in Maine, Massachusetts, Vermont, New Hampshire, Rhode Island, and Connecticut.  The rigorous selection process includes peer nominations, a blue-ribbon panel review and independent research on candidates.  Advertising in the New England Super Lawyers guide has no bearing on the selection process.Portland attorneys included are Eric D. Altholz (Employee Benefits/ERISA); Juliet T. Browne (Environmental); Anthony M. Calcagni (Real Estate); Roger A. Clement, Jr. (Bankruptcy & Creditor/Debtor Rights); Judith M. Coburn (Estate Planning & Probate); Christopher J.W. Coggeshall (Real Estate); Douglas P. Currier (Employment & Labor); Beth Dobson (Banking); Gregory S. Fryer (Business/Corporate); Gregg H. Ginn (Employee Benefits/ERISA); James G. Goggin (Intellectual Property); Mark K. Googins (Business/Corporate); William S. Harwood (Administrative Law); David C. Hillman (Bankruptcy & Creditor/Debtor Rights); Keith C. Jones (Business/Corporate); James T. Kilbreth (Business Litigation); William C. Knowles (General Litigation); Alan D. MacEwan (Business/Corporate); Christopher S. McLoon (Tax); Richard G. Moon (Employment & Labor); Charles R. Oestreicher (Real Estate); James C. Palmer (Real Estate); and A. Robert Ruesch (Construction Litigation). Boston attorneys included are James F. Coffey (Business/Corporate); Gene D. Dahmen (Family Law); Donna M. Evans (Business Litigation); George P. Field (Business Litigation); and Gail Pennington (Estate Planning & Probate).”We are honored that so many of our lawyers were chosen for this distinct recognition,” said Verrill Dana Managing Partner David E. Warren.  “While only five percent of attorneys practicing in New England were selected, nearly 30 percent of Verrill Dana lawyers were chosen for inclusion.  They, along with their colleagues, help to make Verrill Dana one of the most respected law firms in New England, and beyond.”  About Verrill Dana: Verrill Dana, LLP is a full service law firm with more than 100 attorneys conducting a nationwide practice from offices in Portland, Augusta, and Kennebunk, Maine; Boston; Hartford; and Washington, DC.  To learn more, visit our website at www.verrilldana.com.