Class Actions
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CLASS ACTIONS
Nixon Peabody has broad, deep, and long-standing experience in class action defense. This includes not only classic opt-out civil class actions, but also defense of non–opt-out class actions, quasi-class mass tort cases, “private attorney general” actions, shareholder derivative suits, and classwide arbitrations.
In just the past five years alone, we have successfully defended well over 100 such cases in state and federal courts in half the states of our nation. In the process, we defeated numerous motions for class certification, won numerous motions to dismiss or for summary judgment, and successfully concluded settlements covering well over 100 million class members (including the largest consumer class action ever settled).
Health care crisis litigation is among the most active areas for class action today. Protecting clients’ brands for patient care and safety through a health care crisis is mission critical. Our skilled trial team advises clients from the initial press inquiry to the more critical government investigations—all the way through representation in litigation and class actions. Our ability to coordinate the institutional response over multiple parallel criminal, regulatory and civil actions is an effective way to restore trust and confidence in our clients' products and services. Our experience as coordinating counsel in some of today’s most serious, national health care crises demonstrates a track record of successfully solving these complex and potentially catastrophic problems.
Our substantive experience is equally broad in other areas including:
- False advertising and marketing claims about many different products and services
- Large overtime wage and hour claims in a variety of industries under the Federal Fair Labor Standards Act and state laws
- Unfair competition and aiding and abetting breach of fiduciary duty claims against financial institutions
- Securities fraud claims ranging from traditional 10b-5 “stock drop” claims to initial public offering allocation claims
- Significant mutual fund expense and market timing claims
- Complex pharmaceutical and medical device claims of both the product defect and consumer protection variety
- Breach of privacy claims
- Numerous age, race, sex, national origin, and disability discrimination claims
- Class actions against franchisors based on systemwide conduct
- Toxic tort and environmental contamination claims
- Merger and acquisition disputes, leverage buyout disputes, and limited partnership disputes, including multinational hedge fund issues
- Shareholder derivative claims against directors of companies ranging in size from angel-round startups to Fortune 50 companies
- Dissenting shareholders’ claims
- Copyright Act claims
- Employee Retirement Income Security Act (ERISA) claims
- Fair Debt Collection Practices Act claims
- Telephone Consumer Protection Act claims
- Truth In Lending Act and similar statutory claims
- Many different state consumer protection act, antitrust, or unfair competition claims
- Advice on international class actions
The firm’s Class Actions group draws attorneys from our Business Litigation, Energy and Environment, Financial Services and Securities Litigation, Insurance, Labor and Employment, Pharmaceutical Litigation, and Products Liability, Mass and Complex Torts practice groups. In addition to the substantive and procedural litigation skills gained through the extensive experience summarized above, these Class Action Defense Group members are also committed to and trained in reducing total client costs through special electronic discovery, electronic notice, and alternative dispute resolution strategies.
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.
- Zeller v. Constellation Brands, Inc., et al., Case No. BC443338, Cal. Super. Ct., 2012.
Represented Constellation Brands, Inc. and Constellation Wines U.S., Inc. in this lead case resolving a number of consumer class actions begun in California state and federal court. The cases were triggered when French courts convicted a number of wine producers and sellers from the Languedoc-Roussillon region (none of them affiliated with our clients) of fraud. The hit movie “Sideways” caused sales of pinot noir to skyrocket worldwide beginning in 2005, and those producers and sellers tried to profit by selling as pinot noir wine that contained less than the amount of pinot noir required by French law. A class of all purchasers of certain pinot noir wines from 2005 to 2008 throughout the United States sued our clients and their largest competitor, alleging that those companies had resold wine as pinot noir from France that also did not comply with French law. Several of the plaintiffs’ cases have been dismissed, and a very modest settlement was approved to conclude the class claims.
- 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.
. . . Hide Representative Experience . . .Thought Leadership/AlertsUpdate 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 . . . View all . . .
U.S. Supreme Court rejects class certification based on the damages model: Comcast Corp. v. Behrend
Class Action Alert
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March 28, 2013
The Supreme Court tightens up on CAFA—and on class plaintiffs
Class Action Alert
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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
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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
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November 29, 2012
U.S. Supreme Court will hear landmark class action waiver case: American Express Co. v. Italian Colors Restaurant
Class Action Alert
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November 19, 2012
California court: class arbitration waivers allowed after all
Employment Law Alert
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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
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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
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March 12, 2012
Dukes redux: plaintiffs seek certification of smaller class sizes in two states
Class Action Alert
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November 4, 2011
Supreme Court raises the bar for class certification in landmark sex discrimination decision
Class Action Alert
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June 21, 2011
Supreme Court narrows the scope of persons who can be directly liable under Rule 10b-5 for “making” untrue statements of material fact
Securities Litigation Alert
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June 17, 2011
Class actions "a la française": a sea snake!
Class Action Alert
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June 17, 2011
Supreme Court rejects Fifth Circuit's requirement that securities fraud plaintiffs prove loss causation at the class certification stage
Class Action Alert
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June 8, 2011
How Franchise Companies Avoid Class Action Cases
May 27, 2011
U.S. Supreme Court upholds class action waivers in consumer contracts: AT&T Mobility v. Concepcion
Class Action Alert
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April 27, 2011
U.S. Supreme Court declines to adopt bright-line rule that adverse drug reaction reports are not material unless they are statistically significant
Securities Litigation Alert
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March 28, 2011
Insurers' class action claims against drugmaker rejected by appeals court
Class Action Alert
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March 17, 2011
California court weighs in on meal period rules
Employment Law Alert
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February 24, 2011
California Court holds employers liable for up to two hours’ wages per day for meal and rest period violations
Employment Law Alert
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February 23, 2011
Court decisions hint at approval of forum selection clauses in corporate bylaws
Corporate Responsibility Alert
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February 1, 2011
New York class actions: settlement objectors are not entitled to attorneys' fees
Class Action Alert
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October 27, 2010
CPSC Marks First Anniversary of CPSIA with Heightened Standards and Increased Enforcement Power
August 24, 2010
Second Circuit holds that retirees’ state law claims against investment advisor are preempted by federal law
Securities Litigation Alert
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July 1, 2010
. . . Hide Thought Leadership. . . Press
Media Clips- 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. . . . View all . . .
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