Dana Berkowitz chairs Stris & Maher’s healthcare practice and authors many of its high-profile appeals. 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’s healthcare practice focuses on high-stakes disputes between providers and insurance companies. She litigates in state and federal trial and appellate courts across the country, with past representations including four cases before the U.S. Supreme Court. She also advises a number of prominent providers on regulatory compliance and litigation avoidance.
Ms. Berkowitz plays a leading role in the firm’s appellate practice. She has served as the primary author of briefs filed in the U.S. Supreme Court and four federal courts of appeal. 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 addition, Ms. Berkowitz maintains an active trial and arbitration practice. She serves as lead trial counsel in complex commercial disputes in New York and across the country.
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.
In the News
FeaturedStris & Maher Named to National Law Journal’s Appellate Hot List for Third Time in Four Years
October 25, 2019
A Year In Review (2018)
January 16, 2019
Dana Berkowitz Wins Rising Star Award for 2018
July 18, 2018
Dana Berkowitz named to 2017’s list of Super Lawyers
November 3, 2017
Stris & Maher Files Amicus Brief in Transgender Rights Case with Suzanne Goldberg and NAACP
March 2, 2017
Major Ninth Circuit Securities Win for Stris & Maher
October 27, 2016
As U.S. Supreme Court Term Begins, Coverage Continues of Stris & Maher’s Cases
October 12, 2016
Victory for Our Clients in Dollar General v. Mississippi Band of Choctaw Indians
July 25, 2016
Stris & Maher Among Most Successful Supreme Court Firms of 2015 Term
July 7, 2016
United States Supreme Court Decides Important Securities Case
June 30, 2016
Supreme Court Affirms Tribal Judicial Authority
June 23, 2016
Stris & Maher Files Supreme Court Merits Brief in Microsoft v. Baker
May 23, 2016
Stris & Maher Unanimously Wins Securities Jurisdiction Case at Supreme Court
May 16, 2016
Stris & Maher Supreme Court Win Gives Millions of Beneficiaries Peace of Mind
January 20, 2016
Stris & Maher Supreme Court Securities Case a 2016 ‘Case to Watch’
December 24, 2015
Stris & Maher Defeats Hold-Up Suit Over Unsuccessful E-Book
November 2, 2015
Supreme Court to Hear Third Stris & Maher Case of 2015
June 30, 2015
Supreme Court to Hear Another Stris & Maher Case
June 29, 2015
Solicitor General Agrees with Stris & Maher in Important Pension Case
May 29, 2015
Stris & Maher Wins ERISA Fiduciary Case in the Fifth Circuit
May 11, 2015
Dana Berkowitz to Speak About Recent Developments in Securities Litigation and Microsoft v. Baker
October 23, 2017
Dana Berkowitz to Speak at National Forum on ERISA Litigation
October 28, 2016
Dana Berkowitz to Discuss Insurance Benefits Under California and Federal Law
April 20, 2016