Portland, ME 207 228-7260 direct
207 774-1200 main
207 774-1127 facsimile

100 Middle Street
PO Box 9729
Portland, ME 04104-5029
USA

PRACTICES

Business Law Financial Services and Securities Law Litigation and Dispute Resolution

Attorneys | SEARCH RESULTS

Paul McDonald

pmcdonald@bernsteinshur.com
Shareholder

Paul McDonald is a shareholder, the chair of the Litigation Practice Group and member of the Business Law Practice Group. Paul concentrates his practice in complex commercial and business litigation matters. He has tried cases to judges, juries, administrative appeal panels and arbitrators in Maine and across the country. Paul is recognized as a leading commercial litigator by Chambers USA, Best Lawyers in America, and Super Lawyers, and is rated AV-rated by Martindale-Hubbell. As Chambers USA put it in its 2009 Edition of America’s Leading Business Lawyers, “His effectiveness in court is due to his careful preparation, thorough due diligence and presentation skills.”

Paul is a frequent presenter at legal and business seminars and is the co-author of a Bernstein Shur’s monthly Commercial and Business Litigation Newsletter. In 2010, Paul was awarded the Vincent L. McKusick Award by the Maine State Bar Association, which honors the author of the best article published in the Maine Bar Journal that year, for his article entitled Recovery of Lost Profits Damages; All Is Not Lost.

Areas of Specialization

A seasoned and versatile litigator, Paul has handled a wide variety of commercial and business litigation matters in his 25 years of practice. His areas of specialization include the following:  

Corporate and Partnership Litigation. Paul has a keen understanding of corporate and partnership law. He has litigated numerous disputes between corporations and their shareholders, officers and directors, limited liability companies and their managers, officers and members, as well as partnerships and their partners. These cases typically involve corporate governance, business judgment and fiduciary duty issues, but also often include employment termination, covenants-not-to-compete and other contract issues.

Securities Litigation. Paul has both recovered and defended against claims made under the anti-fraud provisions of state and federal securities laws. Paul has litigated securities cases in state and federal courts as well as AAA, NASD and FINRA arbitrations.

Agency and Administrative Appeals. Paul represents private parties in appeals of decisions by local and state legislative and administrative bodies, including appeals of state procurement contract awards pursuant to RFPs.

Copyright and Trademark Litigation. Paul has successfully handled preliminary injunctions and accompanying litigation involving claims of trademark, trade dress and copyright infringement.

Wireless Telecommunications Facility Siting Litigation. Paul brought the very first action in the State of Maine alleging violations of the Federal Telecommunications Act wireless facility siting provisions. Paul continues to represent telecommunications facility providers as well as municipalities in TCA cell tower siting litigation.

“Top Hat” Deferred Compensation Plan Litigation. Paul has handled several cases in which he successfully challenged a chapter 11 bankruptcy debtor’s claim that its employee deferred compensation plan constituted a “top hat plan,” which was therefore exempt from ERISA’s substantive protections, and thus could be included in the bankruptcy estate for distribution to general creditors. In each of these cases, Paul achieved favorable settlements on behalf of plan participants and their beneficiaries, which resulted in the return of substantial portions of their respective plan account balances.

Notable Successes

Paul represents both plaintiffs and defendants. Some of his notable successes in which he has acted as lead (or co-lead) counsel include:

For Plaintiffs:

  • Recovering $30 million and $29 million respectively for the beneficiaries of deferred compensation plans of bankruptcy debtors in two separate adversary class action proceedings in the Bankruptcy Court for the District of Delaware.
  • Overturning an award by the Maine Public utilities Commission of a $32 Million contract for the State of Maine’s NextGen 911 system. This successful appeal of a contract award pursuant to a State-issued RFP required proof, by a heightened standard of clear and convincing evidence, that the award to competing bidder was arbitrary and capricious and in violation of law.
  • Overturning a contract award, based on the same heightened standards, pursuant to an RFP issued by the Maine Department of Labor seeking software that would detect unemployment insurance overpayments.
  • Forcing the general partner of a real estate limited partnership to capitulate to all claims asserted in a complaint filed in the Superior Court of New Jersey and recognize the assignment and transfer of a number of limited partner interests to a bona fide purchaser. 
  • Successfully fending off a motion to dismiss and thereafter obtaining a settlement of $4.75 million in favor of plaintiffs in a federal securities fraud action brought in the United States District Court for the District of Massachusetts arising out of a tender offer by the general partner for limited partner interests in a real estate partnership.
  • Successfully intervening in an action to compel the sale of a low-income housing project and, after several days of trial in the Superior Court of Rhode Island, engineering and obtaining a favorable settlement whereby the project was ultimately sold and the client received in excess of $1 million in sales proceeds.
  • Obtaining cash settlements totaling $4.275 million in favor of the limited partners of real estate limited partnerships alleging claims of breach of fiduciary duty against the general partners of the partnerships in consolidated actions brought in the Superior Court of Massachusetts.
  • Obtaining a preliminary and permanent injunction in the United States District Court for the Eastern District of Pennsylvania in favor of a major oil company after a multi-day trial in an action alleging trademark and trade dress infringement.
  • Obtaining, on the eve of trial, a settlement of $2 million in favor of a regional energy producer/provider in a claim against its insurer for vandalism damage at a steam production facility brought in the Court of Common Pleas, Philadelphia.

For Defendants:

  • Obtaining summary judgment on behalf of a Maine association of municipalities that was charged with violating plaintiffs’ first amendment free speech rights by using taxpayer funds to support and oppose different ballot initiatives aimed at controlling government spending. This precedent setting decision involved application of the evolving “government speech doctrine” by the United States District Court for the District of Maine.
  • Successfully defeating, after several years of litigation in the United States District Court for the District of Maine, a citizen suit brought against the owner and operator of a Maine hydroelectric dam facility alleging the illegal “take” of protected Atlantic salmon under the Endangered Species Act.
  • Obtaining summary judgment in favor of the board of directors of a Delaware corporation in the United States District Court for the District of Maine (upheld on appeal by the First Circuit Court of Appeals) in a shareholder derivative action asserting that the board had engaged in self-dealing by issuing shares of stock in exchange for personal guarantees of corporate refinancing.
  • Successfully obtaining dismissal of all claims against manufacturer nonwoven house wrap arising out of damage to from the Maine Superior Court of all claims asserted against it alleging that defects in its house wrap product caused the water leaks in a building.
  • Defeating preliminary injunction and damage claims brought by the direct competitor of a software manufacturing and development company alleging trademark, copyright and misappropriation of trade secrets claims brought in the United States District Court for the Southern District of Florida. The suit sought to block distribution of the defendant’s flagship software product, and would have resulted, if successful, in driving the company out of business.
  • Winning a defense verdict after a weeklong jury trial in the United States District Court for the Eastern District of Pennsylvania in favor of a merchant bank in a fraud/misrepresentation claim brought by a former owner seeking in excess of $10 million in damages.
  • Winning a defense verdict after a weeklong trial in the United States District Court for the Eastern District of Pennsylvania in favor of European car company in a case alleging a manufacturing defect causing in sudden acceleration.

Prior Affiliations

Paul started his career at Kaye, Scholer, Fierman, Hays & Handler in New York. He then practiced as an associate at Drinker, Biddle & Reath in Philadelphia. Paul later became an associate and then a shareholder at Hangley Connelly, now Hangley Aronchick, in Philadelphia. He has been a shareholder at Bernstein Shur for 10 years.

Personal

Paul and his wife Kelly have five children, one grandchild and live in Cape Elizabeth. Paul and his family spend as much time as possible together in the Maine outdoors, where they love to ski, hike and swim. Paul is active in his church and in the community. He is a former member of the Muskie Access to Justice Award Dinner Committee and member of the board and secretary of the Wayside Soup Kitchen and the board of Easter Seals Maine. Paul is a former high school cross country runner and wrestler and a college and men’s club rugby player. These days, he confines his organized athletic activities to watching his children’s games/events.

Presentations

Paul is a frequent presenter at legal and business seminars. Recent presentations include:

Corporate and Partnership Fiduciary Standards: What You Need to Know and Look For, presented to the Maine Association of Professional Accountants, October 19, 2011

Electronic Discovery: Preservation Duties, and Litigation Holds; Cost Shifting, Sanctions, and Statutory Safe Harbors, presented at the Annual Meeting of the Maine Trial Lawyers Association, March 11, 2011

Electronically Stored Information: Preservation Responsibilities and the Litigation Hold Process, presented at the 2010 Maine Federal Bench Bar Conference, October 22, 2010

Managing Your Risks And Maximizing Your Rewards In Litigation: Limiting the Risk and Cost of Litigation Through Contracts, presented at Bernstein Shur seminar, August 21, 2009

Insurance Coverage for Intellectual Property Claims, presented at the Maine Bar Association Summer Meeting, June 19, 2004

EDUCATION

JD, Rutgers Law School, 1986

BA Biology, Carleton College, 1981, cum laude

AFFILIATIONS

Admitted to practice:
States of Maine, New Jersey, New York and Pennsylvania

Member:
Maine State Bar Association
American Bar Association
Edward Thaxter Gignoux Inn of Court
 

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