Scott O'Connell

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” seven times since 2013 for health care, securities, banking and finance, bet-the-company and appellate litigation.

In addition to an active practice, Scott served as chair of Nixon Peabody’s 325+ person Litigation Department. He also was 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 and ultimate release 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 to mitigate risk and protect your company. 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.

Containing annual litigation spend is an essential task for both in-house and outside counsel. On this topic, your outside legal team is not simply a service provider but a business partner to address these issues. I work closely with clients to develop strategies and fee agreements to maximize value. Utilizing project management tools, effective and disciplined implementation of case specific strategies, and risk sharing compensation models all help to contain cost and maximize value. Using alternative fee agreements which migrate from compensation based on straight billable hours to risk/reward models best aligns your interest with your outside team. Asking your attorneys to share some of the risks and rewards ensures that value, efficiency and success are always driving the development of your case. Asking your outside team to have some “skin in the game” is itself a game changer.

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 Large Case Experience

• Representation of an international real estate services firm in investigations by the New York Attorney General and the Manhattan District Attorney of a New York–based commercial real estate company and its principals
• Class counsel to stop the unconstitutional attempted financial raid of a quasi-governmental malpractice association; the class of approximately 6,000 health care providers received a gross distribution of $196 million
• 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
• 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
• Lead counsel in defense of an NYC hospital system in a putative class action arising from alleged fraudulent trade practices involving billing for medical services
• 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
• Internal investigation of alleged False Claims Act and Stark Law violations by a health care system and representation in related federal civil investigation
• Internal investigation for a bank holding company special committee of certain directors and officers of its subsidiary banks and related representation in an enforcement proceeding by the OCC, federal criminal prosecution, and civil RICO action
• 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)

Presentations

• Presenter, “Stark Law, AKS, and CMP Law Changes: Expanded AKS Safe Harbors, Narrowing Stark Law—Proposed Stark and AKS Protections to Facilitate Value-Based Arrangements and Care Coordination,” Strafford Webinar, February 4, 2020.