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Class Actions & Aggregate Litigation

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Rankings & Honors

  • U.S. News/Best Lawyers “Best Law Firms” ranked as National Tier One in Commercial Litigation, Litigation—First Amendment, Litigation—Labor & Employment and Mass Tort Litigation/Class Actions—Defendants. Received Tier One Metropolitan Honors in Commercial Litigation, Criminal Defense: White Collar, Litigation—Banking & Finance, Litigation—Bankruptcy, Litigation—First Amendment, Litigation—Labor & Employment, Litigation—Securities, Litigation—Tax, Mass Tort Litigation/Class Actions—Defendants, and Product Liability Litigation—Defendants in numerous cities throughout the U.S.
  • BTI Litigation Outlook 2013
    • “Most Feared Law Firm”—Honor Roll
    • Strong Performance—Commercial Litigation, IP Litigation, Product Liability Litigation
  • Chambers USA/Global
  • Legal 500
  • Law 360—Employment 100
  • Benchmark: Litigation/Appellate
  • Best Lawyers “Lawyers of the Year” 2014
    • Scott O’Connell, Boston Litigation—Banking & Finance
    • Carolyn G. Nussbaum, Rochester—NY Litigation—Securities
    • Susan C. Roney, Buffalo—Civil Rights Law

Case Study Video

 

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.

Our approach

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
  • Franchisors

Representative Experience

  • 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.
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  • 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.

Media Clips

  • 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.
  • California Regulation and Legislation to Watch in 2014
    Law360 | January 1, 2014
    San Francisco partner and leader of the firm’s Labor & Employment practice Jeff Tanenbaum discusses a state law that could bring wage-and-hour individual or class actions seeking penalties to employers if they fail to provide breaks to employees to help them cool down from working in the heat.
  • Gift vouchers prompt federal suit
    Boston Business Journal | June 21, 2013

    Class Actions & Aggregate Litigation practice group leader and deputy Litigation department chair Scott O’Connell discusses the proposed class action lawsuit facing online shopping website Rue La La.

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  • Attorneys React to High Court's Arbitration Ruling
    Law360 | June 20, 2013

    Class Actions & Aggregate Litigation practice group leader and deputy Litigation department chair Scott O’Connell comments on the U.S. Supreme Court ruling that courts can't overturn a class arbitration waiver simply because it would cost plaintiffs more to arbitrate the claim than they could possibly recover.

  • Don't "Put the Cart Before the Horse": Supreme Court Rejects Amgen's Argument that Securities Fraud Plaintiffs Must Prove Materiality of Alleged Misrepresentations at the Class Certification Stage
    Legal Insights | April 15, 2013

    Commercial litigation partners Chris Mason and Carolyn Nussbaum and commercial litigation associates Paige Berges and Leah Threatte Bojnowski co-authored this column about the Supreme Court’s split decision upholding the Ninth Circuit’s decision in Amgen Inc. v. Conn. Retirement Plans and Trust Funds.

  • Class Actions to be introduced in France
    Points de Vente | September 18, 2012

    Paris partner Gilles de Poix provides commentary in this article discussing the potential introduction of class actions into French consumer law in 2013 which will more closely resemble European law than U.S. law.

  • First Circuit Overturns Fee Award
    Massachusetts Lawyers Weekly | August 13, 2012

    Boston commercial litigation partner Jon Sablone provides commentary in this article discussing a ruling by the 1st U.S. Circuit Court of Appeals finding that a judge erred by using federal guidelines to determine the amount of attorneys’ fees to be awarded in the settlement of a multi-district class action that involved no underlying issues of federal law.

Ideas

What's trending on NP Privacy Partner
NP Privacy Partner | November 14, 2014

Supreme Court oral arguments: Tenth Circuit aberration on CAFA removal likely to evade review
Class Action Alert | October 9, 2014

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What's trending in data privacy & security
Privacy Alert | August 22, 2014

What's trending in data privacy & security
Privacy Alert | July 3, 2014

Keeping things Basic: The Supreme Court rules in Halliburton
Securities Litigation Alert | June 24, 2014

Ninth Circuit says PAGA claims are not class actions under CAFA
Class Action Alert | April 9, 2014

First data breach class action with no claim for financial harm settled: AvMed settles for $3M
Privacy Alert | March 7, 2014

Supreme Court interprets SLUSA narrowly, allowing state law class actions to proceed against advisors ensnared in frauds
Class Actions Alert | February 28, 2014

2014 Legal Snapshot
January 16, 2014

The Supreme Court restricts the scope of “mass action” removals under CAFA
Class Action Alert | January 15, 2014

No reason to deviate and create new "medical monitoring" cause of action in New York
Products: Class Action, Trade & Industry Representation Alert | December 19, 2013

Further attempts to avoid dismissal on commonality grounds…
Food Safety & Litigation Alert | December 16, 2013

Chief Justice questions cy pres remedies
Class Action Alert | November 7, 2013

Attention all businesses that market by phone, text or fax:
New FCC rules are set to go into effect October 16 and penalties for noncompliance are severe. Are you ready?

Privacy Alert | September 25, 2013

How much is enough (when it comes to ascertaining potential plaintiffs)?
Food Safety & Litigation Alert | September 23, 2013

The Second Circuit turns over a new leaf: class action waivers work after Amex III
Class Action Alert | August 14, 2013

UPDATE: Massachusetts SJC clarifies rule on class waivers in light of Amex III
Class Action Alert | August 8, 2013

SCOTUS upholds class action waiver again: Amex III significantly limits the "effective vindication" of statutory rights doctrine
Class Action Alert | June 24, 2013

Massachusetts SJC rules on class waivers days before United States Supreme Court issues Amex decision
Class Action Alert | June 19, 2013

U.S. Supreme Court allows class arbitration under Section 10(a)(4) of the Federal Arbitration Act: Oxford Health Plans LLC v. Sutter
Class Action Alert | June 11, 2013

Update on the Kilgore Ninth Circuit appeal: California's public injunction exception escapes for another day, but the en banc court reads the exception to arbitration narrowly and rejects plaintiffs' attempt at artful pleading
Class Action Alert | April 16, 2013

Seller beware: merchants with stores that request zip codes may face consumer class actions after recent Massachusetts Supreme Judicial Court ruling
Class Action Alert | April 11, 2013

U.S. Supreme Court rejects class certification based on the damages model: Comcast Corp. v. Behrend
Class Action Alert | March 28, 2013

The Supreme Court tightens up on CAFA—and on class plaintiffs
Class Action Alert | March 20, 2013

Don't "put the cart before the horse": Supreme Court rejects Amgen's argument that securities fraud plaintiffs must prove materiality of alleged misrepresentations at the class certification stage
Class Action Alert | February 28, 2013

U.S. Supreme Court tells Oklahoma state court that state law does not trump the Federal Arbitration Act: Nitro-Lift Technologies, L.L.C. v. Howard
Class Action Alert | November 29, 2012

U.S. Supreme Court will hear landmark class action waiver case: American Express Co. v. Italian Colors Restaurant
Class Action Alert | November 19, 2012

California court: class arbitration waivers allowed after all
Employment Law Alert | June 20, 2012

After Brinker and Dukes, court serves up class certification denial on meal and rest period claims but not on overtime
Employment Law Alert | May 11, 2012

Ninth Circuit applies Concepcion to invalidate California's "public injunction" exception to arbitration and further upholds KeyBank's "opt-out" clause
Class Action Alert | March 12, 2012

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