Scott O'Connell, Partner
Co-Chair, Litigation Department
Practice Group Leader, Class Actions & Aggregate Litigation
Joseph J. Ortego, Partner
Practice Group Co-Leader, Commercial Litigation
NP Trial® Leader
Vivian M. Quinn, Partner
Deputy Chair, Litigation Department
Deputy Practice Group Leader, Products: Class Action, Trade & Industry Representation
Christopher M. Mason, Partner
Daniel J. Hurteau, Partner
Class Actions & Aggregate Litigation
CLASS ACTIONS & AGGREGATE LITIGATION
We foresee trends and emerging issues in class actions, navigate clients away from costly and potentially devastating business disruptions and help them achieve effective and efficient resolutions, in and out of the courtroom.
We resolve even the most complex class actions predictably, efficiently and cost effectively. But what our clients most value is the edge we give them as we counsel ahead of developing trends. We represent clients facing all manner of aggregate actions, including classic opt-out class actions, non–opt-out class actions, quasi-class mass tort cases, “private attorney general” actions, securities litigation, shareholder derivative suits and class arbitrations.
In the past five years alone, we have successfully defended over 100 class and other aggregate actions (involving over 100 million class members) in a variety of forums across the nation. We aggressively challenge plaintiffs’ attempts to aggregate the case. From early evidentiary hearings on class certification to making law on enforcing class waivers in arbitration agreements, we work the strategy necessary for maximum advantage. By tenaciously chasing success on these threshold issues, we set our clients up for favorable settlement negotiations.
We put our clients first. You’ll always work with experienced trial lawyers as well as members of our cross-disciplinary team, who possess deep insight into their respective industries. We are also committed to reducing client costs, through early resolution strategies and smart use of cutting-edge litigation technology.
Who we work with
Businesses operating in regulated industries that deliver products or services, including:
- Health care providers
- Financial service providers
- Insurance providers
- Communication service providers
- Manufacturers and distributors
- Georgia Tuttle, M.D., et al. v. The State of New Hampshire, Belknap County Superior Court, NH, Docket No. 09-E-148(2009); NH Supreme Court Docket No. 2009-0555 (2010) and related judicial, administrative and legislative proceedings.
Acted as lead counsel for a consortium of over 300 health care providers, on behalf of themselves and a class of more than 6,000 current or past policyholders in the New Hampshire Medical Malpractice Joint Underwriting Association (JUA), in an action that successfully challenged state legislation that required the JUA to transfer a total of $110 million in alleged excess surplus funds to the state’s general fund in fiscal years 2009, 2010, and 2011. Both the trial court and the New Hampshire Supreme Court ruled in our clients’ favor, holding that the legislation constituted an impermissible impairment of clients’ contract rights in violation of the New Hampshire Constitution. In 2011–2012, we successfully defended clients’ adjudicated rights in a sequence of judicial, administrative, and legislative proceedings culminating in the prosecution of a precedent setting litigation class action. Class certification was granted, summary judgment was obtained and, after a fairness hearing, the Plan of Allocation to return the $110 million in funds to policyholders was approved.
- Ackal v. Centennial Beauregard Cellular LLC, Case No. 12-30084 (5th Cir. 2012).
Representing wireless telephone service providers sued in 1991 over allegedly improper billing practices, Nixon Peabody successfully appealed an order certifying a class of alleged Louisiana governmental entities. Addressing an issue of first impression, the United States Court of Appeals for the Fifth Circuit reversed the class certification order on the ground that the order effectively created an impermissible “opt-in” class and remanded the case to the District Court.
- John Doe v. Exeter Health Resources, Inc., et al., Case No. 218-2012-CV-00784, New Hampshire Superior Court, Rockingham County, 2012.
Representing Exeter Hospital as coordinating counsel in the criminal, regulatory, and civil actions arising from the infection of patients with Hepatitis-C allegedly by a former employee at Exeter Hospital. Acted as lead counsel in the defense against a putative class action brought by a plaintiff who claimed to be one of 32 patients infected while undergoing medical procedures at the hospital. The plaintiff sought formation of two sub-classes: one for patients that tested positive for the same strain of Hepatitis-C as the former employee, and another for any patients of Exeter Hospital who were contacted in 2012 and told that they may be infected with Hepatitis-C, but tested negative. Class certification was denied under both theories. Separate individual actions are pending.
Kilgore v. KeyBank, 712 F. Supp. 2d 939, N.D. CA, 2010 – to present.
Representing Keybank as lead counsel in a putative class action brought by individuals who had received student loans from the bank to attend a helicopter flight academy that ultimately went bankrupt. Other lenders had settled a similar class action involving the same school for more than $100M. The court agreed that the claims either failed to state a claim under California’s Unfair Competition law, or were preempted by the National Bank Act. The plaintiffs alleged violation of California’s Unfair Competition Law in connection with the student loans they received from KeyBank. On March 7, 2012, we secured a precedent-setting victory on behalf of KeyBank when the Ninth Circuit ruled that the Federal Arbitration Act preempts state laws which attempt to limit agreements to arbitrate. The court specifically held that a line of California cases which purport to prohibit the arbitration of cases involving claims for public injunctive relief was preempted. The court upheld KeyBank’s arbitration provision contained in its student loan promissory notes and rejected arguments of unconscionability. The Ninth Circuit recently granted plaintiffs’ petition for a rehearing en banc, and en banc oral arguments have been scheduled for the second week of December.
Dartmouth-Hitchcock Clinic et al. v. NH Department of Health and Human Services Commissioner, D.N.H, Case No. 11-cv-358-SM, 2012.
Representing 10 hospital clients who sued the state of New Hampshire over more than $260 million in improper Medicaid reimbursement cuts. Acting as lead counsel, we secured a preliminary injunction on behalf of our clients. During a three day evidentiary hearing before Federal Judge Steve McAuliffe Nixon Peabody litigators proved a likelihood of success on the claim that the state’s administration of the Medicaid program violated federal law. The court found that the evidence demonstrated procedural and substantive issues with the Medicaid program. This decision validated the claims the hospitals had been making that the state of New Hampshire had not been complying with the requirements of the Medicaid Act.
Skilstaf, Inc. v. CVS Caremark Corp., et al., N.D. Cal., Case No. 09-CV-02514, 2009–2012.
Represented national grocery and pharmacy chain in a putative class action pending in the North District of California involving alleged inflation of average wholesale pricing (AWP) for prescription drugs. Case was dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) in January 2010. On February 9, 2012 the Ninth Circuit affirmed the district court’s dismissal.
Dodona I, LLC v. Goldman, Sachs & Co., et al., USDC SDNY Case No. 10-CV-7479 (VM), 2010–present.
Defense of special purpose vehicles (domiciled in Delaware and Cayman Islands, respectively) in a putative securities class action alleging fraud under both New York law and Section 10(b) of the Securities Exchange Act of 1934. The claims arise out of losses that the lead plaintiff investment fund alleges were suffered in connection with two synthetic collateralized debt obligation transactions that offered investors exposure to the performance of subprime residential mortgage-backed securities through certain credit default swap transactions.
Allen v. Dairy Farmers of Am., Inc., Case No. No. 09-CV-0230, D. VT, 2011.
Successfully represented a group of ten New York dairy farmers as intervening parties in a class action in which plaintiffs alleged price fixing and collusion by two large dairy cooperatives and one of the largest milk processors in the Northeast. Plaintiffs reached a tentative settlement with the defendant milk processor, which contained injunctive relief limiting the processor’s ability to buy milk from New York dairy farms. Our clients contested the settlement by filing a motion to intervene, which resulted in the removal of the damaging injunctive relief.
- 3 Firms Are GCs' Top Picks For Product Liability Litigation
Law360 | September 21, 2015
In the BTI Litigation Outlook 2016, Nixon Peabody is named as one of three powerhouses in product liability litigation. The recognition is based on a survey of general counsel and highlights firms with long histories of success in the practice area and reputations for developing big-picture strategies for their clients. Litigation department co-chair Scott O’Connell is quoted within the piece.
- Should Workers Get Overtime for Answering Emails After Hours?
Chicago Tribune | July 17, 2015
Chicago Commercial Litigation associate Laura Bacon provides third-party commentary on increasing litigation risks and greater need for employers to establish clear policies surrounding work-related communication by employees.
- Courts Line Up Behind 3rd Circ.'s Ascertainability Logic
Law360 | July 25, 2014
Buffalo Commercial Litigation associate Tracey Ehlers, Buffalo Commercial Litigation partner Viv Quinn, and Chicago IP Counseling & Transactions partner Janet Garetto discuss federal courts’ increased attention to the ascertainability of class members especially in the food and beverage industries where consumers do not typically retain receipts.