With enormous pride, Shaheen & Gordon announces that the First Circuit Court of appeals affirmed the largest jury verdict in NH history – 21.6 Million!!! Our firm represented Karen Bartlett in a federal law suit alleging design defect and product liability claims against Mutual Pharmaceutical, a drug company that manufactured a pain killer known as Sulindac. Ms. Bartlett was prescribed the drug for shoulder pain, but it caused Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis, resulting in burning of 65% of her body surface, permanent near blindness, esophageal burns, lung damage and permanent disfigurement. Our personal injury attoneys won a jury verdict in September 2010, the pharmaceutical company appealed and, this week, the appeal court confirmed the victory. This result demonstrates both the importance of winning a case at trial and preserving that victory on appeal – a credit to our New Hampshire personal injury attorneys. Congratulations to injury attorney Christine Craig and our entire team of personal injury and product liability lawyers for this victory.

Most people charged with Driving While Intoxicated (also commonly referred to as DWI, DUI or OUI) understand that they are facing a potential court imposed license suspesnion, a fine and potentially jail time. But what many people don’t realize is that they are also likely facing another license suspension that is completely separate from the court suspension. This is the “Administrative License Suspension” (ALS) that is imposed by the New Hampshire Department of Safety, Division of Motor Vehicles (DMV). The DMV can impose an ALS in a DWI case where a person “refuses” to take a breath or blood test when requested by a police officer or when the person submits to a requested test and it shows an alcohol concentration of .08 or more. The most common reasons that people are unaware of the ALS case are that nobody really talks with them about it, they are confused by the process and/or don’t really read or understand all of the paperwork they are given by the police after they are arrested. Unlike the court case, where you are given a specific date to appear in court to answer the DWI charge filed against you, in the ALS case you are not given a date to appear at the DMV. In fact, a person is required to submit a request for an ALS hearing  to the DMV within 30 days of their DWI arrest. If the person fails to request a hearing within the 30 days then they are deemed to have waived their right to a hearing on the ALS case and the applicable license suspension period is imposed without a hearing. The impact of the ALS case can be significant. The length of the ALS for a first offense is 180 days. The length of the ALS for a second or subsequent offense is 2 years. Additionally, if the underlying DWI case involves a refusal to submit to a test to determine your breath or blood alcohol content, then the ALS is required be consecutive to any suspension imposed by the court. Know your rights. You can contest and potentially negotiate a disposition in the ALS case. If you’re charged with DWI, consult with one of the attorneys at Shaheen & Gordon. Put our experience and knowledge to work for you.

After a week-long jury trial, Attorneys Don Crandlemire and Jeanine Kilgallen earned a sweeping victory from a Merrimack County Superior Court jury, winning a $108,000 verdict plus attorney’s fees. They represented a company in a case involving the breach of a commercial lease agreement and nimbly presented to the jury a complicated series of documents using the latest in courtroom document presentation technology. Our law firm is proud of their efforts which reflect the firm’s continuing commitment to make New Hampshire’s top corporate, business and trial lawyers available to its institutional and individual clients out of its offices in Concord, Dover, Manchester and Nashua.

Shaheen & Gordon is proud to announce that it has been selected as one of the winners of New Hampshire Business Review’s 2012 Best of Business Awards, known as the BOB Awards.  The BOB Awards honor the best New Hampshire companies and law firms in over 80 business-to-business catagories, as voted on by the readers of the NH Business Review.  With more than 3,600 ballots cast for the 2012 awards, the BOBs have become a standard of excellence in New Hampshire’s business and legal community.  The Firm is honored to have received this award because it reflects its commitment to offering the best attorneys and legal services in New Hampshire out of its offices in Concord, Dover, Manchester and Nashua.

Our criminal defense attorneys defend clients in matters large and small. Often, we see minor cases result in major concerns for clients and their families. For instance, as certain states, including Massachusetts, decriminalize possession of small amounts of marijuana, New Hampshire continues to treat it as a crime and aggressively charge this offense. We defend professionals, college students and others over and over under these circumstances and often hear complaints regarding the scope of police searching. These events frequently occur on the roadside where a young driver is stopped for a garden variety speed violation, an officer or trooper claims to smell the odor of marijuana and seeks consent to search the vehicle. In other instances, we see a stop and arrest for reckless operation or DWI followed by a warrantless search of a vehicle and the discovery by police of marijuana or other contraband, leading to further criminal charges. It is worth understanding how such searches are possible. In New Hampshire, police are permitted to conduct an “inventory search” whenever they impound or tow a vehicle. Such searches are justified by courts as a way to protect an owner’s property while in the custody of police, insuring against claims of lost, stolen, or vandalized property, and guarding the police from danger. In order to conduct such searches, police departments must simply have in place neutral police policy permitting the search of impounded vehicles. In common practice, police use this process to rifle through the contents of a vehicle in search for contraband often finding modest amounts of marijuana. The consequences can be draconian – leaving people that are not criminals with criminal records. In different New Hampshire district courts, these cases are treated differently. Non-prosecution diversionary results are quite possible in some places, but in others, law enforcement continue to be ridged in demanding convictions. Defending such cases requires knowledge of the law enforcement agency involved, the court where the case is pending and how the law applies to any given set of facts. Shaheen & Gordon’s criminal defense attorneys understand the range of potential outcomes when defending marijuana and other drug offenses, how to spot legal and factual issues that can influence negotiations and be effective in court and work toward results that avoid negative collateral consequences such as criminal records when they are simply not necessary. With offices in Concord, Manchester, Dover and Nashua, New Hampshire, our attorneys have state-wide experience and an appreciation of how different jurisdictions react to these charges, experience that counts when trying to protect good people from criminal consequences.

Shaheen & Gordon’s criminal defense practice includes several defense attorneys that were once prosecutors. Our criminal defense practice group includes former prosecutors at the County, State and Federal level. As former prosecutors and now defense attorneys, we have seen time and again the value of our jury system, a system that in New Hampshire requires 12 jurors to unanimously agree that a Defendant is guilty beyond a reasonable doubt before convicting a Defendant of a crime. As defense attorneys, we were very concerned to learn that the New Hampshire House of Representatives is now taking up House Bill 1464, a bill which would do away with the requirement to have a unanimous jury prior to convicting in criminal cases. Simply stated, if applied, this would mean that the State could meet its burden of proof in criminal cases by convincing 11 out of 12 jurors of the Defendant’s guilt. This measure is plainly unconstitutional and comes with a frightening practical consequence. The New Hampshire Supreme Court has repeatedly recognized that the New Hampshire Constitution mandates that a jury of twelve must unanimously reach a verdict of guilty before a defendant’s liberty may be compromised. There is no doubt that this leaves prosecutors with a heavy burden, but there is no doubt that this burden is well worth it. A criminal conviction, especially to a felony, is a stigmatizing event, one that reshapes the life of the accused by dramatically limiting and, in some instances, eliminating educational and professional opportunities. More importantly, jail and prison sentences are often imposed for serious criminal offenses, resulting in separation from society as well as from the family of the accused. Very often, these penalties are completely appropriate. However, before a defendant’s liberty interest is taken, future altered and family taken apart, we ought to be very certain of his or her guilt. In order to bring a level of true confidence to such a grave determination, we have a jury system. It is a system where twelve people must agree unanimously on guilt and, where they do, appropriate and measured punishment ought to follow. Doing away with this requirement dramatically increases the risk of conviction. While this might make the lives of a prosecutor easier, it will also result in the risk of convictions of innocent people. That risk is too high to pay.

Shaheen & Gordon is thrilled to again congratulate its lawyers that were named to the 2011 New England Super Lawyers List.  The Firm strives to offer the best New Hampshire lawyers in a variety of practice areas and this year’s Superlawyers list reflects the firm’s commitment to that goal.  Lucy Karl was named to the list in the area of business litigation, Steve Gordon for his criminal defense work, Michael Noonan for his representation of plaintiffs in personal injury cases and Jim Rosenberg was named to the Rising Stars list for his work in the area of criminal defense.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.  While up to five percent of the lawyers in the state are named to Super Lawyers, no more than 2.5 percent are named to the Rising Stars list.

Under New Hampshire law RSA 115-A:29, employers are required to permit any veteran who has been honorably discharged from the United States armed forces to take the day off on Veterans Day, November 11, without penalty.  Even if a company does not recognize Veterans Day as a holiday, the company must allow veterans to take the day off.   Employers may require a veteran wishing to take the day off to provide advance notice in accordance with the employer’s policies and procedures.

New Hampshire Superior Court rules that Consumer Protection Act does not apply to the sale of a business where buyer and seller were both businessmen without prior experience selling a business.

Precision Truck Body Equipment Company, Inc. v. Candia Trailers and Snow Equipment, Inc.

Seller, the owner of a company, sold his business to Buyer.  As part of their agreement, Seller agreed not to compete with the Buyer’s “new” business.  Seller later admitted that he competed with Buyer’s business, and Buyer sued, alleging that Seller breached the parties’ agreement and violated the New Hampshire Consumer Protection Act (“CPA”).

In analyzing Buyer’s CPA claim, the Court had to first determine whether the parties’ agreement constituted a business transaction involving “trade or commerce” within the meaning of the CPA.  The Court looked to a recent Massachusetts Supreme Judicial Court decision interpreting the similar Massachusetts CPA.  The SJC reasoned that in determining whether a transaction is a personal or business transaction, a court must consider the nature of the transaction, the character of the parties involved, the activities of the parties, whether similar activities have been undertaken in the past, whether the transaction is motivated by business concerns, and whether the participant played an active role in the transaction in the past.  Similarly, the New Hampshire Supreme Court has recently emphasized that a transaction is personal if it is an isolated event, not conducted in the ordinary course of business, or if the parties are on equal footing.

The Merrimack County Superior Court determined that although this was a business transaction in that it involved the sale of a business and occurred between businessmen, it was not a business transaction for purposes of the CPA.  In reaching this conclusion, the Court relied upon the fact that Seller had no prior experience selling businesses that would give him an advantage over Buyer, and both parties had owned businesses in the past.  Thus, the Court held, because Seller was not in the business of selling his business and the parties were on equal footing in the sale, this was not a “business transaction” and the CPA did not apply.

The takeaway:  Courts will look beyond the identity of the parties when analyzing whether a transaction is governed by the CPA.  A transaction will not be classified as a business transaction merely because it occurs between two businessmen.

Court considers whether a breach of the covenant of good faith and fair dealing can be used as a basis to award attorney’s fees.

Birch Broadcasting, Inc., et al. v. Capitol Broadcasting Corporation, Inc., et al.

The parties entered into an agreement for the sale of a radio station.  When the Defendants, the sellers, advised the Plaintiffs that they would no longer close on the transaction, the Plaintiffs sued for specific performance.  The trial court found that the Defendants had violated the implied obligation of good faith and fair dealing by abandoning the obligations that they had undertaken and had led the Plaintiffs to believe that they would honor.  The trial court ordered the Defendants to specifically perform the contract within a reasonable period of time, and the New Hampshire Supreme Court affirmed the order.

The Plaintiffs then moved to recover attorney’s fees from the Defendants.  The Plaintiffs’ argued that the breach of the implied covenant of good faith and fair dealing is equivalent to the bad faith conduct which would entitle the Plaintiffs to attorney’s fees.  The trial court denied this request, explaining that proof of malice or ill will is not necessary to find a breach of the implied covenant of good faith and fair dealing.  However, such conduct is required for a party to demonstrate that it is entitled to recover an award of attorney’s fees.  Specifically, attorney’s fees may only be awarded when one party acts “in bad faith vexatiously, wantonly, or for oppressive reasons,” where the party’s conduct is “unreasonably obdurate or obstinate, or where it should have been unnecessary for the successful party to have brought the action.”  Thus, a mere breach of contract does not constitute bad faith, and the Plaintiffs were not entitled to recover attorney’s fees.

The takeaway:  When a party breaches the implied covenant of good faith and fair dealing, the other party is not automatically entitled to recover its attorney’s fees. 

Shaheen & Gordon is again proud to announce that three of its attorneys have been included in the 2012 edition of The Best Lawyers in America. Steve Gordon was named for his work in both white collar criminal defense and First Amendment matters, Mike Noonan was selected for his plaintiffs personal injury work and Ed Stewart was honored for his work on behalf of claimants in workers compensation cases. For 29 years, Best Lawyers has come to be regarded – by both the legal profession and the public – as the definitive guide to legal excellence in the U.S. The new 2012 Best Lawyers, which is the 18th edition, is based on a rigorous national survey involving more than 3.9 million detailed evaluations of lawyers by other lawyers. Shaheen & Gordon, PA is a full service law firm serving clients in Northern New England in personal injury, workers compensation, criminal, DWI, probate, estate planning, health care, business and corporate matters, operating out of offices in Dover, Manchester and Concord NH.

Shaheen & Gordon extends both its congratulations and sincere appreciation to Bill Shaheen for being nominated by Secretary Madeleine Albright and Secretary Tom Ridge to continue to serve on the New Hampshire Host Committee for the United States Global Leadership Coalition’s Impact 2012 Initiative. The USGLC is a bipartisan organization that promotes a smart-power approach to U.S. foreign policy by focusing on one bipartisan issue – advancing the U.S. International Affairs Budget. Attorney Shaheen joins an impressive list of Honorary State Co-Chairs, including Secretary Donna Shalala, Governor Jeb Bush, Governor Richard Riley and Ambassador David Wilkins. Attorney Shaheen’s nomination reflects his and the firm’s depth when it comes to advising clients on with regard to local, state, national and even international issues.