OConnell Scott

Scott O'Connell



Scott O’Connell is a trial attorney and litigation strategist focused on complex commercial disputes involving high financial and reputational exposure. He has considerable experience leading class action and aggregate litigation as well as parallel government enforcement and regulatory proceedings, most notably involving health service, financial service, energy or manufacturing companies. He has been lead counsel on more than 60 trials, arbitrations, evidentiary injunction proceedings and related appeals in federal and state courts around the country. Scott provides clients with customized and value-driven strategies for resolving cases on their terms.

According to Chambers USA—in which he has been recognized for more than a decade: “The ‘wicked smart’ Scott O’Connell ‘is an enormously talented litigator and an expert on courtroom procedures,’ interviewees confirm.  He is particularly skilled in contentious banking and finance matters, as well as issues arising for health care industry clients.”  In addition to multiple, other third-party professional recognitions, Best Lawyers® has named Scott “Lawyer of the Year” five times since 2013 for health care, securities, banking and finance, and appellate litigation.

In addition to an active practice, Scott serves as chair of Nixon Peabody’s 300+ person Litigation Department.  He is also a member of the firm’s management and compensation committees.  He maintains an active docket of pro bono cases specifically related to the prevention of domestic violence and providing needed access to justice. Scott received the Frederick Douglass Human Rights Award from the Law Office of the Southern Center for Human Rights for successful representation of a Guantanamo Bay detainee in the case Rimi v. George W. Bush, United States District Court for the District of Columbia, No. 1:05-CV-02427.

What do you focus on?

I currently focus my practice in the following areas of financial and reputational exposure:

Trials, Arbitrations and Evidentiary Proceedings

Telling compelling stories with effective witnesses and evidence is at the heart of trial advocacy. Taking complex commercial disputes and breaking them down into thematic and compelling narratives is what I strive to do. I have had the privilege to do trial and evidentiary hearings around the country for different clients in various subject matters. This is my passion and is indeed the best part of my job.

Class Action, Mass Torts and Aggregate Litigation

Class actions are costly and disruptive because they attack products, services and business processes. The exposure can be substantial. I work closely with businesses to find and implement solutions that limit accruing exposure while also defending the case.

Crisis Intervention, Internal Investigations and Parallel Proceedings

Catastrophic events, health and safety issues or corporate integrity matters can destroy a company. Intervening quickly to manage the parallel criminal, regulatory and civil proceedings as well as the challenges presented by social media is essential to restore the brand. I have considerable experience counseling companies through these types of emergent situations.

Health Service Reimbursement Litigation

Many health service providers deliver considerable uncompensated care. These services have material negative financial impacts on these institutions. I counsel these providers with regard to reimbursements owed from Medicaid, Medicare and third-party payors. This work involves federal and state litigation as well as Administrative Procedures Act challenges.

Constitutional Claims

Representation of individuals, business entities and political organizations in the defense of constitutionally-protected rights and liberties. I have developed a particular focus on protecting against the impairment of contracts through state action.

Domestic Violence Protection (Pro Bono)

Practicing law is a privilege, not a right. With that privilege comes professional responsibilities. I consider providing pro bono service one of my professional responsibilities. As someone who grew up experiencing domestic violence, I devote time annually to helping abused spouses and children secure orders of protection and related assistance to remove violence from the home. It should not “hurt” to be a child and part of my commitment is to help those suffering escape the hurt.

What do you see on the horizon?

Managing parallel proceedings is like playing three dimensional chess. Coordinating between criminal, regulatory and civil proceedings is not a linear process. Decisions in one sphere can have material impacts in another. Having a legal team able to identify these threats and navigate successfully through them is essential. Make sure that the team you use is able to operate simultaneously in these different forums.

Social media adds a level of complexion to these parallel proceedings. Brand protection in high exposure litigation is very challenging. Now more than ever, a company needs to be ready to defend itself in the court of public opinion long before a court of law. This is a radically different mindset for most defense minded attorneys who want the luxury of time and analysis to consider options. Legal teams need to be nimble, strategic and very conversant with the brand objectives for your company. If you lose the brand, there might not be anything left for which to fight in the parallel proceedings.

Representative Lead Trial and Appellate Experience

  • Lead counsel for a manufacturing company in two-week trial, resulting in dismissal of wrongful death claims
  • Lead trial counsel for international luxury goods company in five-day trial, resulting in dismissal of unfair and deceptive trade practices claims and associated $10+ million damages
  • Lead trial counsel for a Canadian oil refiner in multi-day trial, resulting in dismissal for lack of personal jurisdiction in aggregate MtBE litigation
  • Lead trial counsel for private equity fund in six-week jury trial in Oahu, Hawaii, defending claims for breach of partnership agreement, fiduciary duty and violations of Hawaii’s unfair and deceptive trade practices act; matter resolved for less than plaintiffs’ final demand
  • Lead trial counsel for health system clients in five-day federal court evidentiary hearing, securing preliminary injunction enjoining $70 million unlawful changes to state Medicaid reimbursements
  • Lead trial counsel for health system clients enjoining CMS’ enforcement of unlawful sub-regulatory agency guidance and obtaining an award of attorneys’ fees because the government’s position was not substantially justified
  • Oral argument for national bank before the United State Court of Appeals for the Ninth Circuit en banc (11 judges) successfully compelling arbitration and enforcing class action waiver

Other Representative Experience

  • National counsel for claims arising from the unwinding of a national bank’s $1 billion private student loan portfolio; more than 100 cases defended including 15 class actions in 11 states alleging truth-in-lending, fiduciary and consumer protection and civil RICO claims
  • Internal investigator and coordinating counsel for a hospital system in parallel criminal, regulatory and civil actions arising from the infection of 32 patients with hepatitis-c through the illegal diversion and use of opiate drugs by an employee
  • Lead counsel for 26 hospitals in multiple actions and appeals enjoining the Centers for Medicare and Medicaid Services from implementing unlawful changes to Medicaid reimbursements; negotiated settlement provides $1.7 billion in Medicaid reimbursements over seven years
  • Class counsel to stop the unconstitutional attempted financial raid of a quasi-governmental malpractice association; the class of approximately 6,000 healthcare providers received a gross distribution of $196 million
  • Successful defense of two foreign energy trading companies and a foreign refinery in aggregate MtBE ground water contamination litigation

Recorded Arguments and Publications

Appellate Oral Arguments

  • Kilgore v. KeyBank, National Association, United States Court of Appeals for the Ninth Circuit, En Banc, (9th Cir. 2013) (Mr. O’Connell argues beginning at approximately 14 minutes).
  • State of New Hampshire v. Hess Corporation, et al., Merrimack County Superior Court, Docket No. 03-C-0550 (2011); see State v. North Atlantic Refining Ltd., 160 N.H. 275 (2010) (The “MtBE Litigation”) (Successful dismissal of Canadian refiner for lack of personal jurisdiction).
  • Hair Excitement v. L’Oreal USA, Strafford County Superior Court, judgment aff’d, 158 N.H. 363 (2009) (no right to jury trial for claims arising from RSA 358-A).
  • Jassmond v. Green, Rockingham County Superior Court (NH), Docket No. 04-E-0375 (2005) (Successful remand for a new trial).

Books

  • From the Trenches III: Pretrial Strategies for Success, ABA Publishing, 2018 (contributing author)
  • From the Trenches II: Mastering the Art of Preparing Witnesses, ABA Publishing, 2017 (contributing author)
  • From the Trenches: Strategies and Tips from 21 of the Nation’s Top Trial Lawyers, ABA Publishing, 2015 (contributing author)
  • “Preventing a Corporate Death Sentence: Governance After Sarbanes-Oxley” (with Richard F. Langan, Jr.), in ICC United Kingdom, Guide to Global Corporate Social Responsibility, 122-23 (Cyworks plc 2004)
  • “Preventing Corporate Criminal Responsibility under the Sarbanes-Oxley Corporate Responsibility Act” (W. Scott O’Connell et al.), in Corporate Governance, 281-92 (Glasser LegalWorks, 2003)
  • “SEC Enforcement of CEO and CFO Certification Requirements of the Sarbanes-Oxley Act of 2002,” in Corporate Governance, 293-95 (Glasser LegalWorks, 2003)
  • “SEC Brings Enforcement Action against a Customer for Aiding and Abetting its Vendor in Booking a Phony Sale,” in Corporate Governance, 365-68 (Glasser LegalWorks, 2003)
  • “Civil RICO and Professional Liability” (with Robert S. Mueller, III), in Civil Rico Practice: Causes of Action, 1993 Cumulative Supplement, 124-74 (Wiley Law Publications, 1993) (Robert S. Mueller, III, is the former director of the FBI)

Litigators of the Week

Law.com Litigation Daily | April 04, 2019

Manchester Complex Commercial Disputes partner Scott O’Connell, head of the Litigation Department, is named one of the Litigators of the Week for securing an award of legal fees for his clients, a group of 26 New Hampshire hospitals who sued the Centers for Medicare and Medicaid Services. The litigation team also included Boston Complex Commercial Disputes associates Morgan Nighan and Kierstan Schultz.

Consumer protection – preemption – eyedrops

Massachusetts Lawyers Weekly | August 27, 2018

Litigation Department head Scott O’Connell is mentioned in this case summary for his role as co-counsel for a group of pharmaceutical companies. The companies successfully defended a suit by a class of customers seeking to force changes to the design of the companies’ eyedrops bottles.

New Hampshire, hospitals strike $1.7 billion reimbursement deal

Reuters | June 05, 2018

Litigation Department Chair Scott O’Connell is quoted in this article on a “significant breakthrough” the Nixon Peabody team achieved in its representation of a group of 26 New Hampshire hospitals seeking reimbursement from the state for indigent care costs.

Hospitals threaten to revive lawsuit, charge 'reckless' state dug itself $38M hole

The Union Leader (New Hampshire) | April 24, 2018

In the following coverage, Litigation Department Chair Scott O’Connell is quoted discussing a dispute between the state of New Hampshire and a group of hospitals over tax and reimbursements for uncompensated care.

Lawmakers hospitals feud over millions of dollars in tax fight

WMUR-TV | April 23, 2018

In the following coverage, Litigation Department Chair Scott O’Connell is quoted discussing a dispute between the state of New Hampshire and a group of hospitals over tax and reimbursements for uncompensated care.

NH hospitals rebuff senator’s $38M escrow plan, demand payments from state

Concord Monitor | April 23, 2018

Litigation Department Chair Scott O’Connell is mentioned in the article for his representation of a hospital group at a hearing of the New Hampshire state Senate finance committee. The hospitals are in a dispute with the state over reimbursements for health care services provided to people who cannot afford them.

Eye drop suit must stay tossed, pharma companies tell 1st Circuit

Law360 | April 18, 2018

Litigation Department Chair Scott O’Connell is mentioned in this article as one of the attorneys for a group of pharmaceutical companies asking the First Circuit Court of Appeals to uphold a U.S. District Court ruling that rejected a lawsuit aimed at forcing a redesign of eye drop bottles.

New Hampshire Hospitals Win Challenge to Medicaid Payment Rules

Reuters | April 04, 2018

Litigation department chair Scott O’Connell is quoted in this story involving Nixon Peabody’s representation of an association of New Hampshire hospitals in its successful appeal against the U.S. Centers for Medicare & Medicaid Services. The lawsuit relates to a policy change about how Medicaid payment are calculated.

NH hospitals fight to keep CMS suit win at 1st Circ.

Law360 | November 21, 2017

This article mentions Boston commercial litigation associate Morgan Nighan and Manchester commercial litigation partner and litigation department head Scott O’Connell for representing New Hampshire hospitals in an ongoing dispute involving a Centers for Medicare & Medicaid services reimbursement policy. Scott is also quoted.

Children’s health org backs hospitals in 1st Circ. CMS row

Law360 | November 16, 2017

This article quotes Manchester commercial litigation partner and litigation department head Scott O’Connell and mentions him and Boston commercial litigation associate Morgan Nighan as counsel representing New Hampshire hospitals in a dispute involving a Centers for Medicare & Medicaid services reimbursement policy.

Free speech and business: Understanding the limitations on commercial speech

New Hampshire Business Review | August 31, 2017

Manchester commercial litigation partner and litigation department chair Scott O’Connell authored this article about recent cases in New Hampshire Superior Court regarding the types of free speech protected under the constitution.

This time, insurance payout is $50 million

New Hampshire Union Leader | April 15, 2017

Manchester litigation department leader Scott O’Connell is quoted throughout this article about developments in an ongoing case involving the New Hampshire Medical Malpractice Joint Underwriting Association.

Letter: State risks federal funds

Valley News | April 03, 2017

Scott O’Connell, leader of the firm’s Litigation Department, is quoted in this article about potential budget repercussions from New Hampshire’s failure to create a dedicated fund for hospital reimbursements.

Contact

Scott O'Connell

Partner
Chair, Litigation Department

Boston

Phone: 617-345-1150

Manchester

Phone: 603-628-4087


Fax: 866-947-1393

Cornell Law School, J.D., 1991, (Editor, Law Review, Chancellor, Moot Court Board)

St. Lawrence University, B.A., 1987, cum laude

Harvard Business School, 2008, "Leading Professional Service Firms"

District of Columbia

Maine

U.S. District Court, District of Maine

Massachusetts

U.S. District Court, District of Massachusetts

New Hampshire

U.S. District Court, District of New Hampshire

New Jersey

U.S. District Court, District of New Jersey

New York

Vermont

U.S. District Court, District of Vermont

U.S. Supreme Court

U.S. Court of Appeals, First Circuit

U.S. Court of Appeals, Ninth Circuit

U.S. Court of Appeals, Second Circuit

U.S. Court of Appeals, Tenth Circuit

  • Named “Lawyer of the Year” by Best Lawyers® for:
    • Appellate Practice, Boston (2019)
    • Litigation—Health Care, Manchester (2018)
    • Litigation—Securities, Boston (2016)
    • Litigation—Banking and Finance, Boston (2014)
    • Litigation—Securities, Boston (2013)
  • Recognized in The Best Lawyers in America© for work in:
    • Appellate Practice
    • Bet-the-Company Litigation
    • Commercial Litigation
    • Litigation—Banking and Finance
    • Litigation—Health Care
    • Litigation—Municipal
    • Litigation—Securities
    • Mass Tort Litigation/Class Actions—Defendants
    • Product Liability Litigation—Defendants
  • Chambers USA: America’s Leading Lawyers for Business (2008 to present)—Clients rate Scott O’Connell as an “expert on class actions.” He is commended for his “well-thought arguments,” his ability to “think on his feet” and his strong command of technical legal points.
  • “New England Super Lawyer” in Securities Litigation and/or Class Action-Mass Torts (2007 to present)
  • Litigation Star in Benchmark Litigation (MA and NH) (2008 to present)—A peer observes, “Scott has unbelievable energy, he bobs and weaves in and out of everything. When he presents, clients say ‘I would like him for my attorney.’ He has a very businesslike approach.”
  • AV peer rating from Martindale-Hubbell (2004 to present)

Scott is on the Board of Trustees for his alma mater, St. Lawrence University, Canton, NY. He has been recognized by the New Hampshire Bar Association for his pro bono service to indigent clients. He is a former member of the Federal Court Advisory Committee for the District of New Hampshire. In January 2003, he was selected by New Hampshire state-wide paper, The Union Leader, as one of the state’s “Forty under 40.” Scott is a former vice chairman of the Farnum Center, a statewide alcohol and drug in-patient recovery program; former member of the Board of Directors of the New Hampshire Food Bank (a program of Catholic Charities); past president of the New Hampshire Task Force to Prevent Child Abuse; former captain, Heritage United Way Community Investment Process; founding director of the St. Lawrence University Alumni Lawyers Association; and is a past coordinator of the Cornell Law School Alumni Association. He is a graduate of Leadership New Hampshire.

As part of a commitment to give back to the community, Scott has dedicated substantial time to pro bono matters. He founded the Nixon Peabody Domestic Protection Team, which assists victims of domestic violence secure protective orders against their abusers. Scott also worked to secure the release of a client, who had been detained at Guantanamo Bay. For his work on this matter, Scott received the Frederick Douglass Human Rights Award from the Law Office of the Southern Center for Human Rights.

In addition, Scott is a recipient of the New Hampshire Bar Association’s 2011 Award for Dedicated Pro Bono Service for his exceptional work with the Domestic Violence Emergency Project (DOVE), a program that provides victims of domestic violence with emergency legal service.

Groundbreaking Class Action Returns $110 Million to JUA Policyholders

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