David K. McCay

Dave specializes in the resolution of complex real estate, environmental and business disputes.  He represents property owners, real estate developers and contractors, commercial landlords and tenants, and businesses and business owners in real estate, zoning and environmental disputes, and in cases involving commercial contracts, shareholder disputes, and the enforcement of noncompetition agreements.  He also represents property owners and developers in local land use permitting matters.

Dave appears regularly in the state and federal courts in Massachusetts and in arbitration proceedings before the American Arbitration Association and JAMS.  Dave has been named a "Rising Star" by Boston magazine and Law & Politics.  In 2005, he was selected by the Worcester Business Journal as one of "40 under Forty" professionals honored for their professional excellence and community service.

Dave is Editor and a frequent contributor to “On Solid Ground: The Mirick Real Estate Law Blog,” which provides news and commentary on real estate development, environmental and construction law.  Dave is also active in the MetroWest community.  He is the Chair of the Southborough Economic Development Committee, and Past-Chair of the Marlborough Regional Chamber of Commerce.  Dave is also a member of the Board of Directors of the 495/MetroWest Partnership, and the Advisory Board for the MetroWest Economic Research Center at Framingham State University.  Dave lives with his wife and two sons in Southborough.

Bar & Court Admissions

  • Massachusetts
  • U.S. District Court for Massachusetts
  • U.S. District Court for Connecticut
  • U.S. Court of Appeals for the First Circuit
  • Boston College Law School JD (2000)
  • Mount St. Mary's University BA, magna cum laude (1995)
  • Obtained a judgment and award of attorney’s fees under G.L. c. 21E, and successfully defended the appeal, against a Massachusetts municipality requiring it to assess and remediate contamination of our client’s 14-acre property. Remediation estimates exceeded $20 million
  • Lead counsel to a Massachusetts municipality on matters involving alleged contamination from the Town-owned landfill operated by a publicly-traded waste management company
  • Successfully obtained the rescission of our client’s purchase of a 78-acre property based on the seller’s failure to disclose known PCB contamination
  • Obtained a multi-million dollar arbitration award and judgment for claims for breach of contract and unfair business practices on behalf of a designer and builder of pollution control systems for power plants. Successful prosecution of the client's claims against its contractor required obtaining testimony and documents from numerous witnesses in nine states
  • Represented owners, developers and municipalities in a variety of zoning, wetlands, Chapter 40B and wireless communication tower cases
  • Successfully defended a large commercial tenant in lease claims related to the termination of the lease and building repairs
  • Obtained a dismissal of zoning-related claims for a commercial property owner concerning the non-conforming use of the property
  • Successfully prosecuted claims on behalf of a real estate investment company against an insurance carrier for failure to provide coverage and benefits under a commercial property policy
  • Resolved an asbestos-related MassDEP enforcement action against two construction businesses resulting in a favorable Consent Order with a modest penalty
  • Resolved a MassDEP enforcement action against an automotive facility resulting in a favorable Consent Order with a modest penalty
  • Successfully represented an international teleconferencing company in the enforcement of a non-competition agreement arising out of the sale of a business
  • Successfully enforced a non-competition and non-solicitation agreement on behalf of a high-tech sales and distribution company against its former sales affiliate

Publications/Presentations

  • "On Solid Ground: The Mirick O'Connell Real Estate Law Blog," editor and author of over 40 articles on various real estate development, environmental and construction issues, 2012 to present
  • Quoted in “New 104-bed assisted living facility coming to Marlborough,” MetroWest Daily News, September 14, 2017
  • Quoted in “Benchmark to improve traffic as part of Marlborough assisted living project,” MetroWest Daily News, August 15, 2017
  • Quoted in “Marlborough: Developer plans 104-bed assisted living facility,” MetroWest Daily News, September 13, 2016
  • Quoted in “Making it that ‘final mile’ to work in suburbia,” Boston Globe, January 21, 2016
  • Presented at “Building the Boroughs+: Building and Keeping a Great Downtown,” Mirick O’Connell Seminar Series, May 7, 2015
  • Quoted in “Marlborough: Developer, committee clash over Dunkin' sign,” MetroWest Daily News, April 28, 2015
  • Quoted in “Southborough considers hiring economic development coordinator,” MetroWest Daily News, February 5, 2015
  • Quoted in “Southborough’s Economic Development Committee sets vision for town’s future,” Community Advocate, January 29, 2015
  • Quoted in “Former Bruins great shares stories at chamber luncheon,” Community Advocate, November 25, 2014
  • Quoted in “Southborough looks ahead 25 years as leaders weigh development strategy,” Worcester Business Journal, November 6, 2014
  • Quoted in “Southborough economic development suggestions begin to take shape,” MetroWest Daily News, November 13, 2014
  • Quoted in “Riding a wave,” Worcester Business Journal, October 19, 2014
  • Quoted in “Southborough gets good news on the economy,” MetroWest Daily News, July 25, 2014
  • Quoted in “Southborough steps up economic development effort,” Community Advocate, July 17, 2014
  • Quoted in “Setting sights higher in Framingham,” Worcester Business Journal, June 17, 2014
  • "Employment Litigation Update," Mirick O'Connell Labor, Employment and Employee Benefits Seminar, 2009
  • "Superior Court Standing Order 1:09: New Rules Promote Transparency in Written Discovery," Massachusetts Bar Association Section Review, 11, no.1, (2009)
  • "The Application of the Massachusetts Psychotherapist-Patient Privilege in Employment Cases," Massachusetts Bar Association Section Review, 8, no. 2, (2006)
  • "Covenants Not to Compete After Boulanger," Massachusetts Bar Association Section Review, 7, no. 1, (2005)
  • "Managing Risks in Private Companies," Mirick O'Connell Seminar Series, 2005
  • "A Matter of Trust: The Impact of Fiduciary Duty on Private Companies," Worcester Business Journal, (May 2, 2005)(with James C. Donnelly, Jr.)
  • "Many Businesses Face New Requirements for Protecting Customers' Privacy," The Mirick O'Connell Report, (Winter 2002)
  • "Hit the Books: Statutory Defenses to Contract," in Legal Ways to Get Out of a Contract (MCLE, 2001) (with Joan O. Vorster)

Professional / Community Affiliations

  • Marlborough Regional Chamber of Commerce, Board of Directors, chair-elect
  • 495/MetroWest Partnership, Board of Directors
  • MetroWest Economic Research Center at Framingham State University, Advisory Board
  • American Bar Association
  • Massachusetts Bar Association
  • Worcester County Bar Association
  • The Boston Sportscar Company, LLC, owner and counsel
  • Town of Southborough, Economic Development Committee, board