Class Actions & Aggregate Litigation

Our approach

We resolve even the most complex class actions predictably, efficiently and cost effectively. But what our clients most value is the edge we give them as we counsel ahead of developing trends. We represent clients facing all manner of aggregate actions, including classic opt-out class actions, non–opt-out class actions, quasi-class mass tort cases, “private attorney general” actions, securities litigation, shareholder derivative suits and class arbitrations.

In the past five years alone, we have successfully defended over 100 class and other aggregate actions (involving over 100 million class members) in a variety of forums across the nation. We aggressively challenge plaintiffs’ attempts to aggregate the case. From early evidentiary hearings on class certification to making law on enforcing class waivers in arbitration agreements, we work the strategy necessary for maximum advantage. By tenaciously chasing success on these threshold issues, we set our clients up for favorable settlement negotiations.

We put our clients first. You’ll always work with experienced trial lawyers as well as members of our cross-disciplinary team, who possess deep insight into their respective industries. We are also committed to reducing client costs, through early resolution strategies and smart use of cutting-edge litigation technology.

We work with

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

Health care providers
Financial service providers
Insurance providers
Communication service providers
Manufacturers and distributors
Franchisors

Representative Experience

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.
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.
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.

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.
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.
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.
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.
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.

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Media Clips

Consumer protection – preemption – eyedrops

Massachusetts Lawyers Weekly | August 28, 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 27, 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 22, 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 28, 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 16, 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 05, 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 07, 2016

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

Why even insured businesses should beware TCPA violations

Law360 | November 08, 2016

Albany commercial litigation associate Leah Bojnowski authored this column about how the Third Circuit recently held that a business’s commercial general liability insurance policy does not cover a TCPA settlement and the implications this has for business owners.

Clinton and Trump and Robocalls, Oh My

Bloomberg Law | July 15, 2016

This feature story looks what political campaigns should know about robocalls. Boston IP litigation associate and TCPA practice co-leader Troy Lieberman discusses the apparent lack of FCC enforcement actions against political campaigns.

Junk Fax Class Certification Exposes Federal Consent Disparity

Bloomberg BNA Privacy Law Watch | June 24, 2016

TCPA team co-leader and Boston IP litigation associate Troy Lieberman is featured in this story that looks at a recent federal court class certification that highlights the struggle companies may go through to defend Telephone Consumer Protection Act (TCPA) claims that they didn’t get consent before sending faxes.

Robotext Class Defendants May Benefit from Multi-District Consolidation Approach

Bloomberg BNA Privacy Law Watch | June 14, 2016

TCPA team co-leader and Boston IP litigation associate Troy Lieberman is quoted in this piece discussing considerations companies should address when facing multiple Telephone Consumer Protection Act class actions.

Cybersecurity Best Practices for Senior Bank Management

Bloomberg BNA Banking Report | March 21, 2016

Chicago partner Susan Feibus authored this column about important considerations for financial institutions to take in terms of policies and procedures that address the cyber threat environment and resilience to cyber attacks.

Lawyers Weigh in on High Court's Class Action Ruling

Law360 | January 20, 2016

Litigation department co-chair and leader of the Class Actions & Aggregate Litigation practice Scott O’Connell reacts to the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez that a settlement with individual plaintiffs does not foreclose on class claims against a defendant.

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Ideas

Press

Events

Talks

Contacts

Scott O'Connell

Partner
Chair, Litigation Department

soconnell@nixonpeabody.com

Phone: 617-345-1150

Joseph J. Ortego

Partner
Chief Diversity Officer
Vice-chair, Litigation Department
Chair, NP Trial®
Leader, Aviation

jortego@nixonpeabody.com

Phone: 212-940-3045

Vivian M. Quinn

Partner
Deputy Practice Group Leader, Products: Class Action, Trade & Industry Representation
Co-leader, Food, Beverage & Agribusiness

vquinn@nixonpeabody.com

Phone: 716-853-8134

Christopher M. Mason

Partner

cmason@nixonpeabody.com

Phone: 212-940-3017

Daniel J. Hurteau

Partner

dhurteau@nixonpeabody.com

Phone: 518-427-2652

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