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

Our nationwide team of more than 50 litigators has successfully represented a variety of organizations in thousands of class actions involving hundreds of millions of potential class members with well over $1 trillion of collective amounts at issue. We have decades of experience representing clients at every level of the judicial system, in international forums, and arbitration and mediation.

We regularly serve as national counsel and national coordinating counsel for class or mass actions filed simultaneously or successively in multiple courts and jurisdictions. While we are a full-service law firm with offices in major cities across the country, we also maintain a unique footprint with class action litigators based in locations not typically served by other large national firms such as Buffalo, Rochester and Manchester. We leverage our combined experience, regional presence, reputation, talent and resources to efficiently and effectively handle complex class actions and aggregate matters.

We help our clients develop processes and strategies for avoiding or limiting class action exposure, and we perform audits to identify particular class action risks. Our team includes experienced mediators who have worked with clients on how they communicate positions in disputes to avoid creating or expanding class action risks. And, we have practitioners with experience in enforcing arbitration agreements with class action waivers.

Through our class action representations, we’ve also worked with most of the major insurers across the globe. In addition, our team is looked to as leaders in class action analysis: we file amicus curiae briefs on significant class action issues, we teach classes to judges on class action procedure, and we write and speak on class action topics.

We represent clients facing all manner of aggregate actions, including classic opt-out civil class actions, non-opt-out class actions, “private attorney general” actions, public attorney general civil actions seeking state-wide restitution, multidistrict/MDL actions, class-wide arbitrations, and parallel processes. Our cross-disciplinary teams defend businesses against:

Consumer-based class actions involving:

  • Privacy and telemarketing
  • Lending and debt collection laws
  • False advertising and marketing including:
    • Food, beverage, and agribusiness advertising and labeling
    • Unfair and deceptive trade practices
    • California’s Prop 65

Investments, securities, corporate governance and partnership disputes involving:

  • Securities fraud
  • Mutual fund expense and market timing
  • Shareholder suits (dissenting shareholder and derivative actions)
  • M&A, leveraged buyout and limited partnership claims, including multinational hedge fund issues

Healthcare class actions

Products liability and mass torts, including:

  • Complex litigation involving pharmaceuticals and medical device
  • Toxic tort and environmental contamination

Employment class actions involving:

  • Discrimination
  • Wage-hour (FLSA and state equivalents)
  • Employee Retirement Income Security Act (ERISA)

Statutory focus

We have experience with complex consumer privacy, data protection and security laws impacting businesses nationwide, including, among others:

  • Illinois Biometric Privacy Act (BIPA)
  • Telephone Consumer Protection Act (TCPA)
  • California Consumer Privacy Act (CCPA)
  • EU General Data Protection Regulation (GDPR)
  • Computer Fraud and Abuse Act (CFAA)
  • Federal Trade Commission Act (FTC Act)
  • Fair Credit Reporting Act (FCRA)
  • Fair and Accurate Credit Transactions Act (FACTA)
  • Fair Debt Collection Practices Act (FDCPA)
  • Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)
  • Children’s Online Privacy Protection Rule (COPPA)
  • Video Privacy Protection Act (VPPA)
  • Credit Card Accountability Responsibility and Disclosure Act (Credit CARD Act)
  • Driver's Privacy Protection Act (DPPA)
  • Freedom of Information Act (FOIA)
  • Federal Trade Commission (FTC) and Federal Communications Commission (FCC) regulations
  • State consumer protection laws in all 50 states, the District of Columbia, and Puerto Rico

Who we work with

Businesses operating in regulated industries that deliver products or services, including:

  • Communication services
  • Financial services
  • Franchisors
  • Health care
  • Insurance
  • Manufacturing and distribution

Representative experience

  • Served as 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. Also obtained an award of attorneys’ fees because the government’s position was not substantially justified. See N.H. Hosp. Ass’n v. Burwell, 2017 U.S. Dist. LEXIS 29549 (D.N.H. March 2, 2017), aff’d, N.H. Hosp. Ass’n v. Azar, No. 17-1615, 2018 WL 1616956 (1st Cir. Apr. 4, 2018); N.H. Hosp. Ass’n v. Azar, No. 15-cv-460-LM, Opinion No. 2019 DNH 057 (D.N.H., March 28, 2019).
  • 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. See Georgia Tuttle, M.D., et al. v. The State of New Hampshire, Belknap County Superior Court, NH, Docket No. 09-E-148; NH Supreme Court Docket No. 2009-0555.
  • Extensive experience with parallel processes and multi-faceted issues. As an example, we represented a hospital as coordinating counsel in criminal and regulatory proceedings that arose from an infectious disease outbreak, and we remained in that role to manage the civil actions that spun off those proceedings. We guided the hospital through a federal criminal investigation, a subsequent drug diversion investigation by the DEA, as well as a parallel state agency regulatory process and then secured dismissal of two putative class actions against the hospital. In addition, we worked closely with the hospital’s in-house and external communication professionals to provide timely information and to restore the hospital’s brand.
  • Serving regularly as national counsel or national coordinating counsel for class or mass actions filed simultaneously or successively in multiple state and federal courts and jurisdictions. Recently, for example, we successfully handled 12 overlapping consumer class actions in 10 jurisdictions, state and federal, for Carfax, Inc., and six overlapping cases in four different federal courts for the world’s largest winemaker.
  • Resolved a nationwide class action over millions of bottles of allegedly fraudulent wine for less than the amount of the settlement paid by the client’s primary competitor. Relatedly, we helped that client defeat multiple claims and attempts to create a multidistrict litigation, eventually securing complete dismissals in five different jurisdictions. See Zeller v. Constellation Brands, Inc., Case No. BC443338 (Cal. Super. Ct.); Charles v. The Wine Grp., Inc., No. BC 576061 (Cal. Super. Ct. 2015), Crespo-Bithorn v. The Wine Grp., Inc., No. 3:15-cv-01424-CCC (D. P.R. 2015), Lopez v. The Wine Grp., Inc., Case No. 2:15-cv-01131-KDE-DEK (E.D. La. 2015), Marvin v. The Wine Grp., No. 3:15-cv-00176-JJB-SCR (M.D. La. 2015), Washington v. The Wine Grp., Inc., No. 4:15-cv-00163-RH-CAS (N.D. Fla 2015, and In re: California Wine Inorganic Arsenic Levels Prods. Liab. Litig., MDL No. 2632 (Jud. Panel on Multidistrict Litig. 2015).
  • For a leading technology company, eliminated both a mass action and a mass arbitration that threatened to disrupt its unique sales and distribution channels. Digital Documents Store v. Xerox Corp., Case No. 72 155 Y 00474 08 JENF (AAA) and Elite v. Global Imaging Sys. Inc., No. BC379155 (Cal. Super. Ct.).
  • Helped establish new law in the United States Fifth Circuit regarding whether governmental entities can be members of putative consumer classes. See Ackal v. Centennial Beauregard Cellular LLC, Case No. 12-30084 (5th Cir. 2012). Wireless telephone service providers had been sued over allegedly improper billing practices, but we successfully persuaded the Fifth Circle Court of Appeals to reverse the class certification order on the grounds that the order effectively created an impermissible “opt-in” class.
  • Defended KeyBank, National Association against class action allegations that the bank’s student loan business should be held derivatively liable in the shuttering of a non-Title IV flight school in California. We successfully appealed to the Ninth Circuit, sitting en banc, and obtained a significant ruling enforcing the bank’s arbitration clause which effectively ended plaintiffs’ class action bid. This was a precedent-setting decision that invalidated California’s “public injunction” exception to arbitration. See Kilgore v. KeyBank, Nat’l Assoc., 718 F.3d 1052 (9th Cir. 2013) (en banc).
  • Represented a database company in the country’s largest-ever class action, a case that we resolved quietly and on extraordinarily favorable terms even after our client’s codefendants decided to settle. Ultimately, plaintiffs were denied all economic relief, and our clients simply codified their existing internal controls. Notably, the statute at issue, the Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-25, meant that the minimum statutory damages for the class would have exceeded $1 trillion because the class comprised all persons in the United States who had been issued a driver’s license at any time over more than a decade. See Fresco v. Automotive Directions, Inc., No. 03-61063 (S.D. Fla.), and Fresco v. Acxiom Corp. and R.L. Polk & Co., No. 07-60695 (S.D. Fla.).

“Ascertainability” in pharmaceutical and medical device cases

Defense Research Institute | September 04, 2019

Complex Commercial Disputes partner Vivian Quinn and associate Tracey Scarpello, both of the Buffalo office, co-wrote this article in the Defense Research Institute’s publication, analyzing the impact of the ascertainability requirement on pharmaceutical and medical device class actions.

Boston Scientific asks judge to toss robocall suit

Law360 | July 12, 2019

This article highlights Boston Intellectual Property associate Troy Lieberman, who is representing Boston Scientific in a proposed class action suit alleging violations of the Telephone Consumer Protection Act.

Barclays, law firm force old-debt fight into arbitration

Law360 | April 30, 2019

Boston Complex Commercial Disputes associate Morgan Nighan is mentioned in this story for her co-representation of Barclays Bank Delaware in a successful effort to dismiss a proposed class action involving the collection of time-barred debt from credit customers.

Facebook lawsuit underscores importance of transparent collection and use of data

Rochester Business Journal | January 25, 2019

Rochester Corporate partner Jeremy Wolk wrote this contributed column analyzing a lawsuit filed against Facebook in Washington, DC, alleging violations of state-level consumer protection laws by the social media company. This article incorporates perspective from an alert written by Washington Complex Commercial Disputes associate Brian Donnelly, Rochester Corporate associate Jenny Holmes, and Los Angeles Government Investigations & White Collar Defense associate Karina Puttieva.

CVN's Top 10 most impressive defense verdicts of 2018

Courtroom View Network | January 11, 2019

Nixon Peabody’s trial victory on behalf of client Daher-Socata has been selected as one of the 10 most impressive defense verdicts of 2018 by Courtroom View Network. Long Island Complex Commercial Disputes partner Joe Ortego led the NP team.

Miami lawyer steers plane manufacturer away from $15M lawsuit

Daily Business Review | December 16, 2018

Long Island Complex Commercial Disputes partner Joe Ortego is mentioned in this article as part of the successful defense team for Daher-Socata Aerospace in a $15 million suit regarding the safety of its plane.

Defense Bar gives 1st Circuit an 'A+' for its order on uninjured class members

National Law Journal | October 23, 2018

Litigation Department head and Manchester partner Scott O’Connell is quoted in this story discussing a recent decision by the 1st Circuit Court of Appeals that is “a welcome development for those of us on the defense side” of class-action cases.

US officials conspired against, owe immigrant kids: suit

Law360 | September 05, 2018

This article is about a class action lawsuit filed in Massachusetts federal court against the Trump administration regarding the government’s policy of family separation. Boston Government Investigations and White Collar Defense associate Lauren Maynard and Manchester Complex Commercial Disputes associate Nate Warecki are mentioned as co-counsel for representing the children that have been separated from their parents at the border.

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.

1st Circuit says challenge to Rx eyedropper size preempted

Law360 | August 26, 2018

Nixon Peabody is mentioned in this article as co-counsel for a group of pharmaceutical companies who won dismissal of a First Circuit class-action suit regarding the design of their eyedrop bottles.

Plaintiffs firms in State Street probe in talks to settle with special master

National Law Journal | August 21, 2018

Boston Government Investigations & White Collar Defense partner Brian Kelly is quoted in this story on his ongoing representation of Thornton Law Firm in a dispute over billing in a securities class action case.

Ex-Tenant can't revive NJ suit over utility billing system

Law360 | March 27, 2018

Long Island commercial litigation partner Dan Gibbons successfully prevailed on the appeal of this case involving a class action over a utility billing system at a New Jersey apartment complex.  Dan along with Los Angeles government investigations and white collar defense partner Jason Gonzalez and associate Neal Gauger represented Yes Energy Management Inc. in this matter.

DC Circuit Delivers Relief, but Not Clarity, with TCPA Ruling

Law360 | March 15, 2018

Boston IP litigation associate Troy Lieberman is quoted in this article explaining how the DC Circuit Court’s ruling on the FCC’s telemarketing rules will provide some relief for businesses.

Failure to respond dooms robocall lawsuit against tech university

Bloomberg BNA | June 04, 2017

Manchester commercial litigation partner Dan Deane is quoted in this article about a matter involving a Telephone Consumer Protection Act (TCPA) case against Colorado Technical University.

FedEx Ground must face NY drivers' misclassification suit

Law360 | December 06, 2016

Buffalo commercial litigation partner Susan Roney is noted as representing FedEx in a class action lawsuit involving the classification of independent contractors. 

Contacts

Scott O'Connell

Partner
Chair, Litigation Department

soconnell@nixonpeabody.com

Phone: 617-345-1150

Dan Deane

Partner
Leader, Class Actions and Aggregate Litigation;
Co-Leader, TCPA & Consumer Privacy Team

ddeane@nixonpeabody.com

Phone: 603-628-4047

Christopher M. Mason

Partner
Deputy Leader, Class Actions and Aggregate Litigation
Leader, Arbitration Team
Member, Firm Policy Committee
Member, Firm Pro Bono Committee

cmason@nixonpeabody.com

Phone: 212-940-3017

  • U.S. News/Best Lawyers “Best Law Firms” 2020 ranked as National Tier One in: Appellate Practice, Commercial Litigation, Corporate Law, Employment Law—Management, Energy Law, Franchise Law, Health Care Law, Labor Law—Management, Litigation—Construction, Litigation—Labor & Employment, Litigation—Real Estate, Mass Tort Litigation/Class Actions—Defendants, Patent Law, Public Finance Law, Real Estate Law, Securities Regulation, Tax Law
  • In addition, many Nixon Peabody practices received U.S. News/Best Lawyers Tier 1 rankings at the regional level in the following geographies: Albany, NY; Boston; Buffalo; Chicago; Long Island; Los Angeles; Manchester, NH; New York City; Providence, RI; Rochester, NY; San Francisco; and Washington, DC.
  • BTI Litigation Outlook 2019: “Most Feared Law Firm”—Honor Roll
  • 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

Groundbreaking Class Action Returns $110 Million to JUA Policyholders

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