Dana Berkowitz

Partner

Los Angeles | New York

Direct: 213.995.6803
Email: dana.berkowitz@strismaher.com

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Dana E. Berkowitz is the youngest partner of Stris & Maher. Ms. Berkowitz leads the firm’s prominent healthcare practice and authors many of its high-profile filings.

Ms. Berkowitz litigates complex healthcare, pension, and other commercial disputes in trial and appellate courts throughout the country. She has litigated four healthcare and pension cases in the U.S. Supreme Court alone, and she has crafted firm strategy in many high-stakes disputes between healthcare providers and insurance companies. Ms. Berkowitz is also regularly retained by providers to advise on regulatory compliance and litigation avoidance.

Throughout her career, Ms. Berkowitz has been known for her ability to persuade in writing. Since joining the firm, she has served as the primary author of briefs filed in the U.S. Supreme Court, four federal courts of appeal, and various state and federal trial courts.

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.

Healthcare Litigation
Ms. Berkowitz litigates complex healthcare disputes throughout the country. Representative examples include:

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.

Parties Confidential
Ms. Berkowitz represents a group of 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.
Pension Litigation
Ms. Berkowitz litigates complex pension disputes in trial and appellate courts throughout the country. Representative examples include:

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).
Securities Litigation
Ms. Berkowitz litigates complex securities matters in trial and appellate courts throughout the country. Representative examples include:

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]
With Peter Stris, Ms. Berkowitz represents plaintiffs on appeal in this 9-figure security fraud class action against a publicly traded pharmaceutical company and its executives. Plaintiffs allege that defendants provided investors with misleading information about the prospects for FDA approval of the weight loss drug lorcaserin. Under the standards established by the Private Securities Litigation Reform Act, the facts alleged in a civil securities fraud complaint must establish a “strong inference” that the defendants acted with wrongful intent. In March 2014, the District Court for the Southern District of California dismissed the case, holding that the complaint’s allegations did not support such an inference. Shortly thereafter, lead counsel Kaplan Fox & Kilsheimer LLP retained us to brief (Our Opening Brief | Our Reply) and argue (Argument Video) the appeal, which is now under submission. Ms. Berkowitz took the lead in drafting both appellate briefs.

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.
Employment Litigation
Ms. Berkowitz regularly represents individuals who have faced adverse employment actions in violation of state or federal law. Representative examples include:

Parties Confidential
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.

Parties Confidential
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.

Parties Confidential
Ms. Berkowitz and her team obtained favorable settlement of a disability discrimination and wrongful termination lawsuit against a foreclosure firm.

Parties Confidential
Ms. Berkowitz is lead counsel to a female investment banker in sex discrimination and retaliation proceedings against a major multinational financial services corporation.
Other Notable Cases
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. The case, which presents important questions about class action procedure, has been fully briefed (Our Brief) and will be argued by Peter Stris next Term. Ms. Berkowitz took the lead in crafting a persuasive narrative of the case.

Smith v. Barnes & Noble, Inc., et al. [Read more here]
Ms. Berkowitz and a team of firm attorneys represent 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). Plaintiff’s appeal is pending.

The Energy Conservation Group, LLC, et al. v. Applied Underwriters, Inc., et al.
A well-known regional business purchased an insurance product that failed to comply with state law and subjected the company to the very exposure it sought to insure. Litigation ensued. Because the insurer is owned by one of nation’s most successful financial companies, the company brought in Stris & Maher as lead counsel to level the playing field.

Parties Confidential
Ms. Berkowitz is lead trial counsel to several American companies in a multimillion dollar franchise dispute against a major international coffeehouse chain. Ms. Berkowitz and her team are currently in arbitration proceedings governed by the Commercial Rules of the American Arbitration Association.
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Education

Harvard, J.D. (2011)
Princeton, A.B. (2007)

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