10956534.1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

Wayne Carter, Toni Cellucci, and Stacey Durgin, 

Individually and on Behalf of all Other Similarly 

Situated Persons, 

 Plaintiffs, 

- v - 

John A. Stephen, Commissioner of the New 

Hampshire Department of Health and Human 

Services, in his official capacity, 

 Defendant. 

Dkt. # 1:07-cv-00023-SM 

 

AFFIDAVIT OF W. SCOTT O’CONNELL

NOW COMES the Affiant and on his oath deposes and says as follows: 

1. My name is W. Scott O’Connell. I am a partner with the firm of Nixon Peabody, 

LLP, 900 Elm Street, Manchester, New Hampshire 03101. I have been a practicing lawyer in 

New Hampshire since 1992. 

2. I am a member in good standing of the bars of New Hampshire, Vermont, Maine, 

Massachusetts, and the District of Columbia. I am admitted in and have active status with the 

United States District Court for the Districts of New Hampshire, Vermont, Maine, and 

Massachusetts; the United States Court of Appeals for the First, Second, and Tenth Circuits; and 

District of Columbia, Court of Appeals. I am currently admitted pro hac vice in proceedings in 

California, New Jersey, New York, Florida, Ohio, Utah, and Hawaii. 

3. I have never been the subject of professional disciplinary action. 

4. My principal specialty during my years of practice has been complex commercial 

litigation and class action defense involving both state and federal claims. I have tried numerous 

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cases in state, federal, administrative and private forums in New Hampshire and elsewhere, and I 

have handled litigation matters involving federal and state constitutional issues. I currently serve 

as national coordinating counsel for KeyBank National Association in the defense of consumer 

class actions pending is federal and state courts throughout the country. 

5. At Nixon Peabody, I am the Practice Group Leader for Financial Services and 

Securities Litigation. As a result, I have administrative and management responsibilities for 

approximately 35 attorneys of our approximately 700 total attorneys, all of whom focus on 

complex commercial disputes and class action defense. Among other things, I assist with the 

annual process of establishing hourly rates for our attorneys and paralegals working in our 16 

offices including Manchester, New Hampshire. As a result, I am familiar with the New 

Hampshire market for hourly rates charged for complex legal services. 

6. I was asked by New Hampshire Legal Assistance (“NHLA”) to serve as an expert 

witness on the issue of what would be comparable 2008 rates under New Hampshire practice for 

the work performed by the plaintiffs’ legal team in this case. 

7. In preparation for rendering my opinion, I reviewed correspondence from Kay E. 

Drought, Litigation Director for NHLA, on the nature of the services performed by the various 

legal personnel; plaintiffs’ class action complaint; The Carter parties’ Motion for Preliminary 

Approval of Proposed Class Action Settlement, including all attachments; and the Pacer docket 

report on this case. During this review, I considered the complexity of the litigation and special 

skill, learning, and experience necessary to handle such a matter 

8. As a result of my review, I concluded that comparable Nixon Peabody New 

Hampshire rates for the legal personnel involved in this case would be as follows: 

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a. Marc Cohan, National Center for Law and Economic Justice. Based 

upon experience, education, and responsibility in the matter, comparable New Hampshire 

attorneys at this firm would have an hourly rate of between $450 and $475. 

b. Kay Drought, NHLA. Based upon experience, education, and 

responsibility in the matter, comparable New Hampshire attorneys at this firm would have an 

hourly rate of between $445 and $465. 

c. Aaron Ginsberg, Disabilities Rights Center, Inc. (“DRC”). Based 

upon experience, education, and responsibility in the matter, comparable New Hampshire 

attorneys at this firm would have an hourly rate of between $215 and $250. 

d. Christine Lavallee, NHLA. Based upon experience, education, and 

responsibility in the matter, comparable New Hampshire attorneys at this firm would have an 

hourly rate of between $310 and $340. 

e. Mary R. Mannix, National Center for Law and Economic Justice. 

Based upon experience, education, and responsibility in the matter, comparable New Hampshire 

attorneys at this firm would have an hourly rate of between $460 and $485. 

f. Amy Messer, DRC. Based upon experience, education, and 

responsibility in the matter, comparable New Hampshire attorneys at this firm would have an 

hourly rate of between $420 and $445. 

g. Ben Mortell, NHLA. Based upon experience, education, and 

responsibility in the matter, comparable New Hampshire attorneys at this firm would have an 

hourly rate of between $310 and $340. 

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h. Laura Redman, National Center for Law and Economic Justice. 

Based upon experience, education, and responsibility in the matter, comparable New Hampshire 

attorneys at this firm would have an hourly rate of between $280 and $315. 

These rates would be subject to adjustment in consideration of the factors listed in Rule 

1.5(a) of the Professional Conduct Rules. 

Respectfully submitted, 

W. SCOTT O’CONNELL 

Date: March 28, 2008 /s/ W. Scott O’Connell

STATE OF NEW HAMPSHIRE 

HILLSBOROUGH, SS. 

This instrument was acknowledged before me on March 28, 2008, by W. Scott 

O’Connell. 

/s/ Cheryl Noonan________

Notary Public 

My commission expires: July 13, 2010 

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