Scott O'Connell

What do you focus on?

I currently focus my practice in three areas of risk exposure:

Class Action Defense 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.

• I have defended financial service companies from consumer class actions in 12 different states. Most recently, I successfully upheld a class action waiver and compelled arbitration in an opinion from the Ninth Circuit Court of Appeals en banc in which co-defendants reportedly settled the same claims for in excess of $100 million.
• In my largest case last year, I acted as co-counsel for a consortium of over 300 health care providers and a class of 6,000 in an action that challenged state legislation that attempted to confiscate $110 million in a quasi-governmental malpractice defense fund. After four years of battles in multiple courts and regulatory and legislative forums, we secured a judgment and the return of $110 million to the class.
• I’ve also defended companies in multiple federal courts around the country from aggregate claims alleging Nuisance, Wage & Hour and Unfair and Deceptive Trade practices.

Crisis Intervention, Internal Investigations and Corporate Victim Protection

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.

• I currently represent a New Hampshire 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 the 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 the 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.

Directors’ and Officers’ Liability, Governance and Fiduciary Litigation

I counsel and defend directors, officers, members and trustees of public, private and nonprofit charitable institutions for claims arising from their duties. I represented outside directors of a bank holding company sued for civil RICO, joint ventures in technology companies for breach of fiduciary duties and shareholders in closely held businesses in control contests.

• I currently represent the directors and officers of Massachusetts public company in a class action brought by shareholders claiming breaches of fiduciary duty arising from a planned merger with another company.

What do you see on the horizon?

Social media makes brand protection in high exposure litigation very complex. 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 lawyers who want the luxury of time and analysis to consider options. Your legal team needs 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 to fight for.

Selected recent experience

Directors’ and officers’ liability/lender liability

• Representation of outside directors of Bank Holding Company and three subsidiary national banks located in Vermont in internal investigation of impropriety and related civil litigation alleging breach of fiduciary duty and civil RICO. Also represented the banks through concurrent criminal prosecutions of inside directors for bank fraud.
• Successful defense of directors and officers of national banks in Vermont sued by customers for civil RICO.
• Successful defense after 5 hearing days in a confidential arbitration involving a closely-held business dispute. Plaintiffs originally sought $10,000,000. Damages reduced before arbitration to $3,000,000 based on successful motion practice. No damages awarded after hearing.
• Ongoing defense of officers and directors in securities class actions alleging material misrepresentations in IPO prospectus.
• Successful defense of $81 million fraud and negligent representation action for alleged “bad-bond opinions” in connection with Seabrook nuclear power plant.
• Successful defense of $10 million lender liability action brought against a Boston-based bank.
• Successful defense of a “bet the company” closely held corporate control/shareholder dispute and receivership action in the Delaware Chancery Court.
• $1 million judgment after trial in cellular partnership dispute and successful dismissal of $6 million counterclaims.
• Multimillion-dollar recovery from joint venturer in breach of fiduciary duty and breach of loyalty action.

Class action defense

Consumer financial services

• Lead counsel in ongoing defense of KeyBank against alleged violations of California's Unfair Competition Law brought by a putative class of individuals who received student loans from the bank. Secured precedent-setting victory from a Ninth Circuit panel, which ruled that the Federal Arbitration Act preempts state laws that attempt to limit agreements to arbitrate. Awaiting decision from the Ninth Circuit after a re-hearing, en banc. Click here to see the video of Scott O’Connell arguing the case on appeal. Kilgore v. KeyBank, 712 F. Supp. 2d 939, N.D. CA, 2013.
• National counsel for 15 class actions alleging truth-in-lending, fiduciary and consumer protection actions, and civil RICO and related claims pending in 11 states against a national bank.
• Dismissal of putative national class actions in California and Utah concerning forced place insurance for leased equipment. Dismissal in Utah affirmed by the United States Court of Appeals for the Tenth Circuit. Ananpoell v. Key Equipment Finance et al., 2008 WL 2225849 (D. Ut. 2008), aff’d, 2009 WL 766532 (10th Cir. 2009).

Nuisance

• Dismissal of class action nuisance claims brought by parents of children who attend school in northwestern Indiana against steel manufacturers for medical monitoring. Morris v. Arcelormittal USA, Inc., et al. Docket No. 2:09cv00108 (2010).
• Dismissal of international oil trading company (Swedish) from MtBE litigation brought by the State of New Hampshire for groundwater contamination.
• Ongoing defense of international trading company (Swiss) and foreign refinery (Canadian) in MtBE litigation brought by the State of New Hampshire for groundwater contamination.

Wage and hour

• Successful defense and settlement of two loan officer Fair Labor Standards Act (FLSA) collective actions against National Bank brought in New Jersey and New York.
• Ongoing defense of a national property management company concerning wage and hour claims of property managers pending in California.

Unfair and deceptive trade practices and fiduciary duty

• Lead trial counsel in defense verdict after 5-day bench trial in which the jury demand was successfully stricken and affirmed on appeal. Plaintiffs sought $10 million in damages for alleged unfair and deceptive trade practices under RSA 358-A arising from the termination of rights to use and sell products because of the improper diversion of products to the gray market. Because one of its major witnesses had significant prior criminal conduct, which would have been a distraction for the jury, L’Oreal successfully struck the jury demand because there is no right to a jury trial for statutory claims. During trial, the court bifurcated liability from damages. After 5 trial days of the liability case, the trial judge ruled that L’Oreal’s anti-gray market and anti-diversion campaigns resulted in the termination of the plaintiff’s rights to its product. New Hampshire Supreme Court affirmed that the plaintiffs had no right to a jury trial. Hair Excitement v. L’Oreal USA, Inc., 158 N.H. 363 (2009).
• Lead defense attorney in six-week jury trial in Oahu, Hawaii, for breach of partnership agreement, fiduciary duty, and violations of Hawaii’s unfair and deceptive trade practices act. The case arose in the context of a proposed mezzanine investment for the plaintiff to acquire three related business in Hawaii. After plaintiff was unable to perform, defendants purchased the businesses. Plaintiff’s sought $120 million in damages but obtained a verdict of $12.75 million (11% of damages and below final demand). Matter settled during appeal. Significant Daubert challenges to proffered experts; substantial issues with jury instructions (i.e., court refused to instruct under Hawaii’s Uniform Partnership Act despite the claim that this was a usurpation of a corporate opportunity).
• Successful arbitration in New York of $4 million civil fraud and conspiracy case concerning alleged false postal documents and no-prosecution decision in related criminal investigation.

Constitutional claims

• New Hampshire class action, unconstitutional state taking and impairment of contract—Acted as co-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 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, 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. (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.) Click here to read a full case study.
• Guantanamo Bay detainee—Successful representation of Libyan national held for 4 years at Guantanamo Bay as an enemy combatant. Client released to Libyan custody. Muhammad Abdallah Mansur Safrani Al Futuri Rimi (“Petitioner” or “Mr. Rimi”), (ISN #194), age 39, is a citizen of Libya. In 2002, Mr. Rimi was taken into custody by United States armed forces in Afghanistan and brought to Guantánamo Bay Naval Base, Cuba (“Guantánamo Bay”), where the United States continued to hold him for the next four years. Mr. Rimi’s detention at Guantánamo was unlawful, as Mr. Rimi was not and never had been an enemy alien, lawful or unlawful belligerent, or combatant of any kind, and had never been “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 516 (2004). Mr. Rimi filed a petition for writ of habeas corpus in this court on December 19, 2005, challenging his designation as an enemy combatant under Hamdi v. Rumsfeld, 542 U.S. 507 (2004). On December 20, 2006, the government filed a Notice of Transfer in this matter, which stated that “the United States ha[d] relinquished custody of petitioner Mohammed Rimi, a.k.a. Mohammad Rimi, (ISN 194) and transferred him to the control of the Government of Libya.” See Notice of Transfer of Petitioner (Dkt. No. 13). Received the Frederick Douglass Human Rights Award from the Law Office of the Southern Center for Human Rights. Rimi v. George W. Bush, United States District Court for the District of Columbia, No. 1:05-CV-02427.
• Election contest—Represented former county attorney Peter McDonough in multi-day hearing challenging election results and appeal to NH Supreme Court. The challenge focused on the propriety of counting straight ticket ballots with marks inconsistent with such a straight ticket vote. Ballot law commission ruled 2 to 1 against Mr. McDonough. Supreme Court accepted an emergency appeal under Rule 11, issued a restraining order against the swearing in of the new county attorney and held an expedited hearing. In re McDonough, Supreme Court of New Hampshire, No. 2002-814, 149 N.H. 105, 816 A.2d 1022 (2003).
• Redistricting—Senators petitioned for Supreme Court to exercise jurisdiction over state senate redistricting. The Supreme Court held that: (1) standard applicable to federal district courts, rather than state legislatures, applied to state Supreme Court's redistricting plan; (2) the Supreme Court needed to redraw the districts to correct violation of equal protection and equal voting rights; (3) the submitted plans were flawed by failure to rest them entirely upon the federal census data; and (4) the existing senate districts provided the appropriate starting point for the Court’s redistricting plan. So ordered. Below v. Gardner, et al., New Hampshire Supreme Court, No. 2002-0243, 148 N.H. 1, 963 A.2d 785, 2002

Recorded Arguments, Publications, Articles and CLEs

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)

Publications

Books

• 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)

Legal Industry Publications and Magazines

• “Medicaid Rate Challenges in the Wake of Douglas: Is the Mandate of Equal Access to Efficient, Economical and Quality Medical Care Under the Medicaid Act Illusory?” (with Gordon J. MacDonald and Anthony Galdieri), DRI MedLaw Update, Vol 19, Issue 2, June 12, 2014
• “Litigating in the Court of Public Opinion,” New Hampshire Business Review, January 24, 2014
• “Final HIPAA Omnibus Rule Expands Law’s Impact on Firms” (with Linn Foster Freedman), New Hampshire Business Review, May 3, 2013
• “5 Reasons to Use Focus Groups in Jury Research,” Corporate Counsel, March 13, 2013
• “Winning in the Court of Public Opinion, Brand Protection in High Exposure Litigation,” In-House Defense Q., Winter 2011, at 46-48, 75 (DRI Publication)
• “‘Inevitable disclosure’ takes a hit in N.H.” (with Courtney Quinn Brooks), New Hampshire Business Review, July 1, 2010
• “Supreme Court Ruling Permits States to Enforce Consumer Protection Laws Against National Banks,” New Hampshire Business Review, August 28, 2009
• “Ruling Limits Class Actions in Data Breaches,” New Hampshire Business Review, July 17, 2009

Legal Development Alerts

• “UPDATE: Massachusetts SJC clarifies rule on class waivers in light of Amex III” (with Daniel Deane and Morgan Nighan), Nixon Peabody Class Action Alert, August 8, 2013
• “SCOTUS upholds class action waiver Again: Amex III significantly limits the “effective vindication” of statutory rights doctrine” (with Christopher M. Mason, W. Daniel Deane, Morgan C. Nighan, and Paige L. Berges), Nixon Peabody Class Action Alert, June 24, 2013
• “Massachusetts SJC rules on class waivers days before United States Supreme Court issues Amex decision” (with Christopher M. Mason, W. Daniel Deane, and Morgan C. Nighan), Nixon Peabody Class Action Alert, June 19, 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’ attempts at artful pleading” (with W. Daniel Deane), Nixon Peabody Class Action Alert, April 16, 2013
• “The Supreme Court tightens up on CAFA—and on class plaintiffs” (with Christopher M. Mason and Sara E. Farber), Nixon Peabody Class Action Alert, March 20, 2013
• “First Circuit faults bank for “one-size-fits-all” approach to cyber security measures” (with W. Daniel Deane), Nixon Peabody Banking and Financial Services Litigation Alert, August 1, 2012
• “Ninth Circuit applies Concepcion to invalidate California’s “public injunction” exception to arbitration and further upholds KeyBank’s “opt-out” clause” (with W. Daniel Deane), Nixon Peabody Class Action Alert, March 12, 2012
• “Dukes redux: Plaintiffs seek certification of smaller class sizes in two states” (W. Scott O’Connell et al.), Nixon Peabody Class Action Alert, November 4, 2011.
• “Class Action in data breach case largely eviscerated” (with Linn Foster Freedman, Andrew Cosgrove, and Sabrina E. Dunlop), Nixon Peabody Class Action Alert, May 26, 2009
• “Federal Court denies Neurontin class certification” (with Fred A. Kelly, Jr. and Michael R. Scott), Nixon Peabody Class Action Alert, May 22, 2009

Continuing Legal Education Faculty

• “Consumer Finance Class Action Litigation and Settlement Trends and New and Emerging Procedural Considerations,” American Conference Institute’s National Conference on Consumer Finance Class Actions & Litigation, January 29-30 2014, New York, NY
• “Indemnification and Contribution in New Hampshire,” New Hampshire Bar Association Superior Court Civil Practice: New Rules & Far More, September 25, 2013, Concord, NH
• “Predictive Coding and Electronic Stored Information,” New Hampshire Bar Association Superior Court Civil Practice: New Rules & Far More, September 25, 2013, Concord, NH
• “Arbitration Clauses: Emerging Law From Follow-On Cases After AT&T Mobility LLC v. Concepcion,” Law Seminars International Class Actions and Alternatives for Resolving Aggregate Claims, June 17-18, 2013, Boston, MA
• “Consumer Finance Class Action Litigation and Settlement Trends and New and Emerging Procedural Considerations,” American Conference Institute’s National Conference on Consumer Finance Class Actions & Litigation, January 31 and February 1, 2013
• “Crisis Management for the In-House Counsel: Brand Protection in High Exposure Litigation,” online CLE course, Lexis CLE, February 2013
• “The Continued Erosion of Overbroad Class Actions—The 9th Circuit Takes Action,” online CLE course, Network of Trial Law Firms’ In-House Counsel Blazing New Trails, April, 2012, Scottsdale, AZ
• “The Continued Erosion of Overbroad Class Actions—The 9th Circuit Takes Action,” online CLE course, Network of Trial Law Firms’ Financial Services Litigation Supercourse, September 2012, New York, NY
• “Protection in High Exposure Litigation” Panel (moderator), DRI Corporate Counsel Round Table, January 20 and 22, 2011, New York, NY
• “Crisis Management for In-House Counsel,” online CLE course, Network of Trial Law Firms’ Litigation Management: Driving Great Results, May 2011, Naples, FL
• “Compliance: In-House Counsel’s New Challenges,” online CLE course, Network of Trial Law Firms’ Litigation Management with a Vengeance, November, 2010, Sanctuary Resort, Kiawah Island, SC
• “We Are From the Government and We Are Here to Help,” Network of Trial Law Firms’ Uncorking Litigation Management Expertise, April 2009, Silverado Resort, Napa Valley, CA
• “Class Actions: Winning up front by preventing certification,” Network of Trial Law Firms’ Rock Solid Litigation Management, October 2008, The Boulders Resort, Carefree, AZ
• “Corporate Investigations and Parallel Proceedings,” Network of Trial Law Firms’ Litigation Management in a New York Minute, August 2008, City Bar Building, New York, NY
• “Corporate Investigations and Parallel Proceedings,” Network of Trial Law Firms’ Litigation Management Putting on the Ritz, May 2008, Ritz Carlton Golf Resort, Naples, FL
• “Corporate Governance,” Network of Trial Law Firms’ Watching Whales and Minding Minnows, April 2006, Montage Resort, Laguna Beach, CA
• “Conflicts, Waivers and Other Things That Really Annoy Me About You!” Network of Trial Law Firms’ Litigation Management in a New York Minute, August 2005, City Bar Building, New York, NY
• “When Civil Actions Becomes Criminal: Practical Considerations in Concurrent Proceedings,” Network of Trial Law Firms’ Litigation Management in a New York Minute, August 2004, City Bar Building; New York, NY
• “Going Supersonic with Litigation Extranets: How Not to Crash and Burn,” Network of Trial Law Firms’ Top Gun Litigation, April 2003, Miramar, CA
• “Am I Doing Business With a Terrorist: Practical Considerations in Complying with the USA Patriot Act of 2001,” Network of Trial Law Firms’ Trial Wars: The Company Strikes Back, April 2002, Marriott Camelback Inn, Scottsdale, AZ

Profiles

• “N.H. Attorney Has a National Impact,” Michael McCord, New Hampshire Business Review, December 28, 2012
• “Q&A With Nixon Peabody's Scott O’Connell,” Law360, November 3, 2010