Dana Berkowitz is an experienced trial lawyer who chairs Stris & Maher’s healthcare practice.
Ms. Berkowitz’s healthcare practice focuses on resolving high-stakes problems facing providers, from multimillion-dollar fights with insurance companies to bet-the-company regulatory proceedings. She litigates healthcare issues in federal, state, and administrative tribunals throughout the country. She also counsels leading providers seeking to implement best practices in anticipation of sale or litigation avoidance.
Alongside her healthcare practice, Ms. Berkowitz maintains an active trial and arbitration docket. Since joining Stris & Maher, she has served as lead trial counsel in a variety of complex commercial disputes. She has achieved wins for clients on both sides of the aisle, including for plaintiffs in a franchise dispute against an international coffeehouse chain and for defendants in a nine-figure false advertising case.
Ms. Berkowitz also plays a leading role in the firm’s appellate practice. She has served as the primary author of countless briefs filed in the U.S. Supreme Court, the federal courts of appeal, and the California and New York state appellate courts. Notably, Ms. Berkowitz led the briefing on appeal in Schueneman v. Arena Pharmaceuticals, Inc., in which the Ninth Circuit reversed an order dismissing a pharmaceutical class action with prejudice. The case later settled for $24 million.
In 2018, New York Law Journal named Ms. Berkowitz a “Rising Star,” recognizing her as one of the region’s most promising young lawyers. Ms. Berkowitz began her career at Cleary Gottlieb Steen & Hamilton LLP in New York. She received her J.D. with honors from Harvard Law School and her A.B. from Princeton University, from which she graduated Phi Beta Kappa. She is proficient in Spanish and French, conversant in Mandarin, and has a rudimentary knowledge of Japanese.
Ms. Berkowitz litigates a wide variety of complex and high-profile disputes. The matters below are representative of her experience.
Humana v. Nguyen
Shortly after the district court granted summary judgment against an ERISA plan participant in favor of his insurance company, trial counsel retained us to brief (Our Opening Brief | Our Reply) and argue (Oral Argument Audio) the appeal. Over a vigorous dissent, a panel of the Fifth Circuit reversed, adopting the position advanced by Ms. Berkowitz that certain ministerial tasks commonly performed by health insurance companies do not necessarily support fiduciary standing under ERISA (Opinion). This 2-1 decision resolved significant confusion within the Fifth Circuit about who can sue plan participants.
Montanile v. Board of Trustees [Read more here]
After firm lawyers preserved the key legal issue through briefing and argument in the Eleventh Circuit, Ms. Berkowitz and her team persuaded the U.S. Supreme Court (Petition) to hear this important case about the scope of reimbursement rights available to federally regulated health insurance plans. In an 8-1 decision authored by Justice Thomas (Opinion), the Court adopted the position advanced by our firm’s merits briefing (Our Opening Brief | Our Reply) and argument.
Mallon v. Trover Solutions, Inc.
We represented lead plaintiffs in this putative class action in an appeal presenting important legal questions about the scope and mechanics of ERISA’s administrative exhaustion requirement. Ms. Berkowitz worked with a team of firm lawyers to prepare our Opening Brief and took the lead on our Reply Brief.
Catastrophically Injured Individual v. Health Plan Fiduciaries
Ms. Berkowitz and a team of firm lawyers represented a heroin addict who was rendered quadriplegic in a terrible car accident. Insisting that the accident was not covered, our client's health plan refused to pay for any of the $1.3 million in medical bills resulting from the accident or to cover any future medical care. Without any need for litigation (Our Administrative Letter-Brief) (redacted), Ms. Berkowitz and her team were able to persuade the health plan to do an about-face and cover all relevant medical expenses.
Ms. Berkowitz represents several renowned substance abuse treatment facilities in connection with their complex and high-value disputes with health insurance companies. Ms. Berkowitz also advises these facilities on a variety of business matters with significant legal components, including revenue cycle management and regulatory compliance.
In re Disney ERISA Litigation
Ms. Berkowitz led the briefing on appeal (Our Opening Brief) before the Ninth Circuit in this closely-watched action on behalf of a putative class of over 50,000 participants in a Walt Disney Company pension plan. The suit alleged that plan fiduciaries violated their duties under ERISA by failing to monitor one of the plan’s most popular mutual fund offerings, which abandoned its stated investment strategy. Ms. Berkowitz presented oral argument (oral argument) before the Ninth Circuit, arguing against noted appellate and Supreme Court litigator, Jonathan Hacker. The Ninth Circuit ultimately sided with the defendants.
RJ Reynolds Pension Plan v. Tatum
After losing a controversial 2-1 decision in the Fourth Circuit, RJR Reynolds retained the former Solicitor General under President George W. Bush to file a petition for certiorari in this high-stakes, high-profile pension class action. Lead plaintiffs’ counsel retained our firm as Supreme Court counsel. With Peter Stris, Ms. Berkowitz took the lead in drafting the Brief in Opposition. The Court elected to call for the views of the Solicitor General who, after meeting with both sides, fully endorsed our position (U.S. Invitation Brief). The petition was subsequently denied.
Davis v. PBGC
On behalf of the Delta Pilots’ Pension Preservation Organization (DP3, Inc.), Ms. Berkowitz prepared an amicus brief (Our Brief) urging Supreme Court review of an important DC Circuit ruling in complex pension litigation brought by other airline pilots and their beneficiaries against the Pension Benefit Guarantee Corporation (SCOTUSBlog Profile of Case).
Merrill Lynch Pierce Fenner & Smith, Inc. v. Manning [Read more here]
In May 2016, the firm prevailed before the U.S. Supreme Court in this important securities jurisdiction case. We represent a group of investors who sued several major financial institutions in New Jersey state court for violations of New Jersey law. The suit alleges that the defendants’ illegal practices precipitated a loss of over $800 million in shareholder value. Led by Merrill Lynch, the financial institutions argued that the federal securities laws prevented plaintiffs from suing in state court. The Court adopted one basis for affirmance of the decision below advanced by our firm (Our Brief | Opinion). Ms. Berkowitz took the lead in crafting a persuasive narrative of the case.
Schueneman v. Arena Pharmaceuticals, Inc. [Read more here]
Ms. Berkowitz led the briefing on appeal in this high-profile, 9-figure securities fraud class action against a publicly traded pharmaceutical company and its executives. In a unanimous 3-0 decision, the Ninth Circuit reversed the district court’s decision dismissing the case with prejudice. The SMLLP team successfully argued that defrauded investors do not need to have a “smoking gun” to hold companies liable for misleading conduct
Jiang v. Federal Insurance Co.
Our firm was retained to seek a preliminary injunction in New York state court that would require a D&O insurance carrier to advance $5 million to a policyholder facing federal criminal charges. Ms. Berkowitz took the lead on briefing (Our Complaint | Our Motion | Our Reply) and she argued the preliminary injunction motion in the Commercial Division of New York Supreme Court.
Ms. Berkowitz obtained favorable settlement of an age and disability discrimination lawsuit against an international banking and financial services holding company. The defendant sought to settle shortly after Ms. Berkowitz propounded detailed document requests, interrogatories, and requests for admission that demonstrated knowledge of systemic misconduct.
Ms. Berkowitz obtained favorable settlement of an acrimonious dispute between an undocumented immigrant and his former employer, a popular Los Angeles-area nightclub, immediately following her deposition of the chief executive officer of the company.
Ms. Berkowitz and her team obtained favorable settlement of a disability discrimination and wrongful termination lawsuit against a foreclosure firm.
Ms. Berkowitz secured a favorable settlement for a female investment banker in a sex discrimination and retaliation dispute with a large multinational financial services corporation.
Intellectual Property Litigation
Roe v. Smashwords, Inc., et al. [Read more here]
The firm represented Smashwords, Inc., the nation’s largest self-publishing platform, in a suit brought by a couple depicted on the front page of a self-published e-book based on NFL player Rob Gronkowski. The case and e-book were made briefly newsworthy after being featured on NPR and TV show Jimmy Kimmel Live. Ms. Berkowitz led briefing for this 2017 appeal, in which the Sixth Circuit affirmed our 2016 Southern District of Ohio summary judgment defense victory for Smashwords, Inc. (Our Sixth Circuit Brief | Sixth Circuit Opinion | Our Summary Judgment Motion | Our Reply | Order Granting Motion).
Smith v. Barnes & Nobles, Inc., et al [Read more here]
Ms. Berkowitz and a team of firm attorneys represented Barnes & Noble in this lawsuit alleging Copyright and Lanham Act violations. In late 2015, following her defense of a deposition of Barnes & Noble's corporate representative, the firm secured summary judgment dismissing the case in its entirety (Opinion). In late 2016, the Second Circuit affirmed (Opinion).
Other Notable Cases
Top Trump fundraiser Elliot Broidy secured a “crushingly one-sided” hush money deal against former mistress Shera Bechard. Ms. Bechard retained Stris & Maher to litigate her suit against her former attorney, Keith Davidson, alleging that he colluded with ex-Trump attorney Michael Cohen to draw up these intentionally unfavorable conditions. Ms. Berkowitz briefed and will argue the appeal of the trial court’s denial of Broidy’s motion to compel arbitration in California state court.
Dollar Gen. Corp. v. Miss. Band of Choctaw Indians [Read more here]
The State of Mississippi retained our firm to prepare and file an amicus brief on a critical question regarding the scope of tribal jurisdiction: whether Indian tribal courts may ever adjudicate civil tort claims in suits against nonmembers. Ms. Berkowitz led the drafting of Our Brief, which was joined by the States of Mississippi, Colorado, North Dakota, New Mexico, Oregon, and Washington and marked the first time that any state had ever supported a finding of tribal jurisdiction in a major case before the Supreme Court. Our side prevailed before an equally divided Court.
Microsoft v. Baker [Read more here]
A putative class of consumers retained our firm as Supreme Court counsel in this design defect case alleging that Microsoft’s popular Xbox360 console scratches game discs during ordinary use. Team SMLLP briefed the U.S. Supreme Court appeal, which presented important questions about class action procedure. Ms. Berkowitz took a lead role in crafting the persuasive narrative of the case. Although the Supreme Court issued an adverse decision, it left the door open to a favorable outcome on remand.
The Energy Conservation Group, LLC, et al. v. Applied Underwriters, Inc., et al.
Berkshire Hathaway subsidiaries offer a patented insurance product designed to circumvent protective state regulations. After a well-known regional business signed up, the insurer increased its premiums by 2900 percent, claiming that the business was liable for the very risks it sought to insure. The company retained Stris & Maher as lead counsel to level the playing field in the ensuing litigation. Ms. Berkowitz led the on-the-ground litigation and negotiated a favorable settlement for ECG.
Ms. Berkowitz served as lead trial counsel to several American companies in a franchise dispute against a major international coffeehouse chain. Ms. Berkowitz and her team won a high six-figure award in arbitration proceedings governed by the Commercial Rules of the American Arbitration Association.