Nationally recognized for its class action defense practice, Pierce Atwood helps business clients navigate the perilous waters of class action litigation.  Bringing to bear decades of experience defending companies of all sizes faced with class action lawsuits, we work closely with clients to define success and to design and implement strategies to achieve it.  Depending on the case and the client’s needs, these strategies may include seeking early dismissal, proposing limitations on pre-certification discovery, challenging class certification, moving for summary judgment, taking the case to trial, negotiating a favorable settlement – and most often some combination of the above.  Because the stakes are high and the procedures complex, clients rely on our accomplished class action defense team to evaluate each lawsuit’s risks and chart the optimal course.

Our class action litigators have defended clients from a variety of industries in a wide range of class actions asserting claims under federal and state substantive laws, including consumer class actions, product liability class actions, wage and hour class actions, bank overdraft fee class actions, insurance coverage class actions, Fair Debt Collection Practices Act class actions, and ERISA class actions. Our lawyers also have extensive experience with the Class Action Fairness Act, and handling class actions that are consolidated in Multi-District Litigation (MDL) dockets. In the past several years, we have achieved excellent results for our business clients in class actions filed in federal and state courts in California, Florida, Maine, Massachusetts, New York, Pennsylvania, South Carolina, and other jurisdictions.

In addition to our vigorous representation of defendants in class action lawsuits, practice co-leader Don Frederico offers class action mediation services to assist parties in resolving class action lawsuits. While most class actions settle, class action settlements are far more complicated and difficult to achieve than settlements of individual actions. Having an experienced class action lawyer serve as mediator can facilitate the resolution of class-wide disputes. Don’s three decades of extensive class action experience, his track record of negotiating and obtaining court approval of class action settlements, and his national and local reputation as a leading class action lawyer who works well with defendants and plaintiffs alike, make him ideally suited to mediate class action disputes.

Since 2017, Pierce Atwood’s Class Action Defense practice has received a National Tier 1 ranking by US News-Best Lawyers “Best Law Firms” report. According to Best Lawyers, achieving a tiered ranking signals a “unique combination of quality law practice and breadth of legal expertise.” This national ranking demonstrates that our Class Action Defense Practice is recognized for excellence beyond our regional New England presence. Additionally, Pierce Atwood is recognized by BTI Litigation Outlook 2019 as a “Standout” in Class Actions Litigation – ranked by corporate counsel as among the top firms in this area.

Our reputation for excellence is also reflected in our attorneys’ participation in national bar activities focused on class actions. For example, practice leader Don Frederico serves on the Planning Committee for, and is a member of the Faculty of, the American Bar Association’s National Institute on Class Actions. Our attorneys have authored chapters of several ABA books on class actions, including the First Circuit chapter in the recently published Survey of Federal Class Action Law, the Maine chapter in Fifty State Survey of Class Action Law, and the Massachusetts chapter in A Practitioner’s Guide to Class Actions.

Pierce Atwood attorneys also maintain a class action blog, First Class Defense, which covers a wide range of national and regional class action developments with an emphasis on decisions of federal and state courts within the geographical boundaries of the First Circuit.

Representative Experience

Our lawyers counsel clients on website and digital accessibility issues under the Americans with Disabilities Act (ADA), Twenty-First Century Communications and Video Accessibility Act (CVAA), and similar federal and state laws and regulations, and represent clients in the defense of related class actions. Our litigators have represented defendant companies in direct-to-consumer and retail industries in website accessibility lawsuits in the United States District Courts for the Eastern and Southern Districts of New York.

Assisting with Website & Digital Accessibility Issues

Pierce Atwood represents a large national bank in an overdraft fee MDL pending in the District of South Carolina.  During the course of the representation, we obtained dismissal of plaintiffs’ claims based on the bank’s past practice of ordering debits from high to low, and of usury claims based on the bank’s assessment of additional fees after a customer’s checking account continues to have a negative balance ten business days after the initial overdraft.  In addition, we successfully opposed plaintiffs’ motion to certify a class seeking actual damages for alleged violation of the Electronic Funds Transfer Act. 

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Bank Overdraft Fee Litigation

In a case that should be of interest to manufacturers and distributors, and especially to suppliers of building products, Pierce Atwood’s class action defense team defeated class certification in a building products case in the District of Massachusetts. Plaintiffs alleged defective design and manufacture of decking sold by our client. After extensive fact and expert discovery, Plaintiffs filed a motion for class certification, and a hearing was held. On September 21, 2015, District Judge Denise Casper issued her decision denying Plaintiffs’ motion, ruling that individualized issues of causation and injury precluded findings of commonality, typicality and adequacy under Federal Rule of Civil Procedure 23(a). The judge based her ruling, in part, on evidence that only a small percentage of purchasers had reported problems with the decking, and that almost all of the warranty claims those purchasers submitted had been honored.

Class Certification Victory in Building Products Case

In a putative class action in Maine Superior Court filed on behalf of borrowers with mortgages allegedly discharged improperly by Bank of America, Pierce Atwood helped the bank obtain a voluntary dismissal of all claims in the face of the bank’s motion for summary judgment. Quebbeman v. Bank of America, N.A., Maine Superior Court No. BCD-CV-15-01 (Order dated November 9, 2015).

Dismissal of Claims Against National Bank in Mortgage Discharge Class Action

We successfully defended a major retailer in parallel federal multi-district and state level class actions after a data security breach resulted in exposure of electronic payment card data.

Dismissal of Class Actions Against Retailer for Data Security Breaches

On behalf of North America’s largest vinyl siding manufacturer, we recently obtained dismissal of breach of warranty and consumer protection claims in a putative nationwide class action filed in the Northern District of New York.  The court held that the four named plaintiffs’ claims were not subject to personal jurisdiction in New York, and based its decision in part on the Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court.

Dismissal of Vinyl Siding Class Action

We represented a check processing company and its debt collector affiliate in a series of putative class actions filed in California, Kansas, Maine, New York, and North Carolina, and consolidated in Multi-District Litigation in the District of Maine.  After obtaining dismissal of all of the lawsuits originally filed outside of Maine, we negotiated a favorable nationwide class action settlement for our client of all remaining claims.

Dismissals and Settlement of Fair Debt Collection Practices Act Litigation

In two separate class actions, in which Pierce Atwood separately represented Unum Life Insurance Company and Sun Life Assurance Company, the U.S. Court of Appeals for the First Circuit held that using Retained Asset Accounts (RAAs) to pay death benefits claims on group life insurance policies does not violate the Employee Retirement Income Security Act (ERISA), where the policies either require or permit payment by RAA.

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First Circuit Wins for Life Insurance Companies in ERISA Class Actions

We represent a leading insurer in defense of claims for MedPay benefits under Massachusetts automobile policies brought in Massachusetts Superior Court.  In 2016, we negotiated and obtained court approval for a class action settlement to resolve the claims of class members for whom Personal Injury Protection (“PIP”) benefits had been exhausted.  We currently represent the insurer in a putative class action brought on behalf of claimants for whom PIP benefits were not exhausted.

Massachusetts Automobile Insurance Litigation

We recently represented a bank in a putative nationwide and statewide class action concerning student loan services filed in the Eastern District of Pennsylvania.  After we and counsel for other defendants filed motions to compel individual arbitration, the case was settled on favorable terms.

Student Loan Litigation

Pierce Atwood successfully defended a nationwide nonprofit business association and its for-profit affiliate in a putative class action on behalf of members alleging unfair trade practices, breach of fiduciary duty, breach of contract and misrepresentation; we successfully obtained dismissal of five of seven counts and defeated class certification as to the remaining two counts.

Successful Defense of Nonprofit Business Association

We recently represented a Maine-based retailer in a case alleging overtime violations under the Fair Labor Standards Act and analogous state statutes.  Plaintiffs claimed that our client’s store managers located in Maine and other states were misclassified as exempt employees, and that they should have received premium pay for overtime hours worked.  After an initial investigation, we were able to negotiate a favorable settlement that was approved by a New York state court.

Wage and Hour Class and Collective Action Against Multi-state Retailer

We successfully defended a private equity firm in a class action matter relating to putative WARN Act violations by its investment, a now defunct toy retailer.

WARN Act Class Action