Bernstein Shur Monthly – April 2018

Ranked Choice Voting Gets Green Light in ME

[Full Press Conference]
Press conference on ranked-choice voting win

[News Center Video Clip]
ME’s highest court green lights ranked-choice voting 

[Additional Articles]
Ranked-choice voting will be used for June primaries

Jim Monteleone quoted in Portland Press Herald 

New ME Law Makes Major Changes to Modernize and Improve ME’s Property Tax System

By: N. Joel Moser

In Brief:

The ME Legislature recently enacted Public Law Chapter 367, “An Act to Modernize and Improve ME’s Property Tax System.” In the first major overhaul of ME’s property tax statutes in years, the law makes five key changes that affect property tax administration in ME.

What’s Changing

1. The law requires that a taxpayer and municipality participate in mandatory mediation prior to advancing to a hearing before the State Board of Property Tax Review.

The state entity has jurisdiction over appeals of nonresidential property with valuations over $1,000,000.

2. The law clarifies the process by which assessors may request confidential and proprietary information from taxpayers and who may review such information.

Assessors are now expressly permitted to share certain taxpayer-provided confidential and proprietary information with individuals involved in the conduct of official duties.  In particular, such information may be disclosed to the State Tax Assessor, to trained mediators, in a judicial proceeding in camera, in administrative proceedings in executive session, and to public officials or any employee, agent, attorney, or consultant engaged in official business.  Intentional, unauthorized disclosure of confidential and proprietary information remains a Class E crime.

3. The law further clarifies that assessors may make “proper inquiries” into the nature, situation, and value of a taxpayer’s property simultaneously with a request for a “true and perfect list” of the taxpayer’s property. 

Prior to this change, some taxpayers took the position that such “proper inquiries” were not valid unless preceded by a request for a “true and perfect list,” although the State Board had recently rejected this position. This technical clarification to the statute will greatly streamline a taxpayer’s reporting obligations and make annual reporting more efficient for both taxpayers and municipalities.

4. The law changes the membership of the State Board of Property Tax Review.

The public member has now been replaced with a person “with expertise in taxation, finance or property valuation matters.” The law also removes the requirement that the assessor member be a retired assessor.

5. The law creates the Task Force to Restructure and Improve the Efficiency of the State Board of Property Tax Review.

The Task Force is charged with evaluating the entire State Board process and making recommendations to further improve the efficiency of the appeal process.

The new law, which becomes effective 90 days following adjournment of the Legislature, was the product of a compromise reached among ME assessors, large commercial taxpayers, and other stakeholders. Interested persons should continue to follow the work of the Task Force, as additional changes to ME’s property tax statutes statutes are likely.

4th Annual Women in Construction & Project Development Event

On Wednesday, April 25th, Bernstein Shur hosted its 4th Annual Women in Construction & Project Development event, organized by Attorneys Asha A. Echeverria and Meredith Eilers, who both specialize in construction law and dispute resolution. This event, attended by seventy-five ME women, gives participants a chance to network and catch up with colleagues at the beginning of the busy construction season. This year’s topic, Women Leading the Industry, is timely given the events in the news and at work in companies around ME. Now more than ever, the topic of women in leadership is gaining momentum.

Studies have shown that a myriad of benefits exist for women-owned and operated businesses and the number of these businesses is growing. In 2017, women were expected to own 39% of all U.S. businesses, with construction accounting for 5% of them. Women who move forward and become leaders of our industry continue to be accomplished exemplars of their trade. On April 25th, Bernstein Shur was proud to present an esteemed panel of four of these women who are truly at the forefront of the industry:

• Ellen L. Belknap, President, SMRT Architects and Engineers
• Stacey Morrison, Owner, Ganneston Construction
• Joyce Taylor, Chief Engineer, ME Department of Transportation
• Deirdre Wadsworth, President, Hardypond Construction

This annual event is open to all women and planning for the 5th Annual Women in Construction & Project Development event in Spring 2019 will begin shortly. If you would like to be added to our invite list, please contact Asha A. Echeverria at aecheverria@bernsteinshur.com.

Bernstein Shur Business & Commercial Litigation Update

By: Daniel Murphy

A federal court has approved the final settlement of consolidated privacy class actions pending against Apple and numerous other software companies addressed to claims of improper access to iPhone users’ personal information.

In the underlying class actions, numerous software developers were accused of uploading address book data from Apple users’ devices without consent. Plaintiffs also alleged that Apple aided and abetted such conduct, which centers on the “find friends” feature  contained in various apps. Settling class defendants include Yelp, Twitter, Kong, and Instagram. As part of the settlement of claims, eligible claimants within the class of nearly 500,000 users will be eligible to obtain compensation from a common fund totaling $5.32 million. Prior to final approval of the settlement, U.S. District Judge Jon Tigar also requested the U.S. Attorney’s Office to investigate nearly 6,000 suspicious claims submitted by asserted class members.

To learn more, read the full Business & Commercial Litigation Newsletter here.

Six Tips for Implementing Litigation Holds When a Lawsuit Is On the Horizon

Parties generally are not under a duty to preserve documents and electronically stored information (ESI). However, a duty to preserve relevant records arises when litigation becomes known or reasonably foreseeable. One way that a party can satisfy its document preservation obligation is by issuing a “litigation hold notice.” Implementing hold notices requires close coordination between counsel and the client, and knowledge of a client’s electronic systems and data practices. Below are six tips that we recommend when drafting and issuing litigation hold notices:

Be on alert for triggering events. A triggering event that makes litigation reasonably foreseeable may be obvious (e.g., a letter threating litigation or a filed complaint), or require closer analysis (e.g., a complaint from an employee or knowledge of a workplace accident). Parties must be aware that notice of potential litigation can take many forms. Often corporate counsel may be the first to learn of possible litigation, and when in doubt, litigation counsel should be consulted to determine the scope of any preservation duties.

Be fast when the time comes. Implementing a litigation hold is not fun, but each day delayed may be another day that ESI is lost forever. Sound pre-litigation information governance practices are critical to quickly, efficiently, and effectively implementing a document hold when the time comes.

Be specific about preservation duties. The scope of a litigation hold is determined by the types of documents and ESI that the client maintains, and the relevant issues in the litigation. A party must take “reasonable steps” to preserve ESI, and parties often are surprised by the breadth of permissible discovery. The litigation hold notice should describe exactly what types of records must be preserved and for what period of time. It should not be left up to the employees to determine what is required of them.

Be clear about compliance. A litigation hold notice should be written and state in plain English what each recipient is required to do. The notice should remind recipients about the consequences of non-compliance and require that all recipients reply to the notice in writing to confirm their understanding and compliance. Documenting the preservation process is critical in the event that a spoliation dispute arises later.

Be careful of auto-deletion programs. Certain programs, including e-mail, may have automatic deletion programs that must be disabled under a litigation hold. It is not enough to tell employees not to delete an e-mail folder or throw out documents; all potentially relevant ESI, including back-up or archived ESI, may require preservation.

Be sure the hold remains effective. Sending the litigation hold notice is only step one. Counsel must follow up to ensure that the hold was implemented effectively and remains in place throughout the litigation. This includes staying aware of departing employees and ensuring that their data and equipment are preserved.

To learn more about Bernstein Shur’s e-discovery team and services, contact team members Adam Prescott at aprescott@bernsteinshur.com or 207 228-7145, or Jack Woodcock at jwoodcock@bernsteinshur.com or 207 228-7115.