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 maters, 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.

Attorney Stachowske recently won a case before the Supreme Court that established new law regarding international travel with a minor child, In the Matter of Cynthia Rix and Rajesh Jathar, No. 2010-074.

The Petitioner filed a petition with the Portsmouth Family Division to prevent the Respondent from traveling to India with the parties’ minor child.  She argued that she was fearful the Respondent would not return.  The Marital Master found that the Respondent presented no risk of flight, and denied the Petitioner’s Motion.  The Petitioner appealed the issue to the Supreme Court arguing that because India was not a signatory to the Hague Convention, her fears of child abduction were credible.

The New Hampshire Supreme Court held that while a foreign country’s Hague Convention signatory status should be a significant factor for the trial court to consider, it cannot, standing alone, be determinative of whether it is in the best interests of a child to travel with a parent outside of the country.  As a result of this decision, the Petitioner has been able to enjoy international travel with the minor child, to India where his extended family continues to reside.

iHearSafe, LLC v. Christine Ingemi, et al

The purchaser of an Asset Purchase Agreement (“APA”), brought suit against the seller for breach of contract. Seller responded with numerous counterclaims, including fraud, negligent misrepresentation, and intentional misrepresentation.

Purchaser moved to dismiss the counterclaims under the traditional rule of contract law that parties cannot typically go outside the face of the contract itself to determine the intent of the parties. Additionally, the APA contained a “merger clause:” a standard clause that typically states “This agreement contains the entire agreement of the parties.”

The Merrimack Superior Court ruled where fraud or other misrepresentations have been asserted, evidence outside the plain language of the contract may be presented and considered by the Court. A merger clause can never protect a person who has committed fraud or relied on misrepresentations to induce another into a contract.

The takeaway: Even a well crafted merger clause will not prevent outside evidence of either fraud or misrepresentation possibly voiding a contract. Parties must be confident in any representations made to the other side during negotiations in order to preserve and protect the terms and obligations of a contract.

Johnston v. Lakes Region Gaming, et al

A five member LLC was formed to purchase a greyhound racing track and secured the sole rights to purchase the track for $4,100,000.00. Ultimately, the LLC decided it did not want to purchase the track. Two LLC members negotiated with another buyer to sell the purchase rights for $5,000,000.00 without telling the other LLC members. The new buyers replaced the deposit, and the original deposit and costs were returned to the LLC. The $900,000.00 profit was then split between those two LLC members only.

The two LLC members defended their actions by claiming their fiduciary duties of good faith and loyalty ended once the decision was made to not purchase the track, and they only owed a duty to replace the LLC’s deposit and costs.

The Court ruled that their fiduciary duties remained so long as they were members of the LLC and they were obligated to share the opportunity with the LLC. Further, because the Court found a breach of the loyalty duty, the two members were forced to turn over the entire $900,000.00 profit to the remaining three LLC members and not share in its division.

The takeaway: Fiduciary duties of loyalty and good faith extend beyond the original business plan or intent, and remain until formally discharged.

Axenics, Inc. v. Turner Construction Company, et al

A general contractor (“GC”) entered into a written agreement with a sub-contractor (“SC”) to furnish labor, materials, and services on a large construction project. The contract specifically required any changes or modifications to the contract be in writing. Upon completion, the GC refused payment of approximately $1,000,000.00 to the SC for additional services.

The GC based its nonpayment on the fact that the majority of excess work had been done pursuant to oral agreement rather than by written agreement. The Court rejected this position under an unjust enrichment theory and noted that courts will now typically enforce change orders in whatever form given, regardless of a ‘written change order’ requirement clause in the underlying contract.

The takeaway: Even when a ‘written change order’ clause exists, courts will likely enforce oral modifications to the contract when a benefit is received by a party.