Ben Berkowitz

On behalf of Instacart, we have successfully defended against numerous class and collective actions across the country alleging that that shoppers who use Instacart’s technology platform should be classified as employees rather than independent contractors. We have won a number of early dispositive motions in these cases, including motions to compel individual arbitration and to enforce class and collective action bars.

We won a complete defense judgment in favor of McKesson after a month-long trial of a qui tam action alleging violations of the False Claims Act and Anti-Kickback Statue. The trial victory allowed McKesson to avoid paying nearly $1 billion in fines, and to avoid the collateral penalties that government agencies can impose on companies found to have paid illegal kickbacks. The Justice Department’s complaint charged McKesson with paying kickbacks to a nursing home operator in the form of underpriced services, and with submitting “legally false claims” to the government. After we had the whistleblower dismissed, a key victory, we then won dismissal of related claims that the nursing home’s supplier subsidiary failed to comply with Medicare supplier standards. With the case’s scope significantly narrowed, we lead our client through a bench trial which featured 24 witnesses, hundreds of exhibits and post-trial briefing. The judge ruled in our client’s favor, vindicating McKesson and its employees. This victory was listed by the National Law Journal as one of the year's five most significant trial wins.

We won summary judgment of non-infringement for Taiwan Semiconductor Manufacturing Company, Ltd. and its subsidiary TSMC, North America in a long-running patent lawsuit brought by North Carolina semiconductor company, Ziptronix, Inc. Ziptronix had asserted nine patents and more than 500 patent claims directed to TSMC’s manufacturing of semiconductors for use in backside-illumination image sensors used predominantly in smartphone cameras. On behalf of TSMC, we defeated Ziptronix’s claims by arguing that the territorial limits of U.S. patent law prohibited reaching TSMC’s business transactions and manufacturing operations in Taiwan.

We won summary judgment for a major international law firm in a multi-million-dollar fee dispute and professional liability action arising from its work on a federal fraud case. We successfully defended our victory on appeal to the U.S. Court of Appeals for the Ninth Circuit.

We won summary judgment for a chain of luxury health clubs, which faced a class action alleging age discrimination based upon discounted pricing for the clubs’ younger members. After winning at the trial court, we then successfully defended our victory on appeal to the California Court of Appeal. In affirming the trial court’s order, the Court of Appeal held that our clients’ pricing model was not only non-discriminatory, but in fact was supported by public policy.

In classic David vs. Goliath litigation, we defended the founders of a digital currency startup against allegations of intellectual property theft brought by a large, international company. The litigation spanned multiple jurisdictions and involved conflicts between U.S. and foreign law. After we won an early strategic motion bringing a full stop to the plaintiffs’ California litigation, and after we filed counterclaims on behalf of our clients against the original plaintiffs in a new action in Delaware Chancery Court, the multi-jurisdiction litigation reached a confidential settlement. The company our clients founded has now raised more than $40 million in venture capital funding.

We represented GoFundMe, one of the world’s leading crowdfunding platforms, in trademark litigation in federal district court in Utah. In pursuing an aggressive defense of GoFundMe’s trademark rights, we filed an early motion for summary judgment asking the federal court to cancel and invalidate the plaintiff’s competing registered mark. Shortly after our motion for summary judgment was filed, the case reached a confidential settlement.

In a case filed in the Northern District of Texas, we defended a leading search engine against copyright and trademark claims. The case was resolved on favorable terms for our client.

We represented an individual in a shareholder dispute between two former partners of an Internet startup that was acquired by a multinational corporation. We reached a confidential settlement before significant sums were spent on litigation, and before a single deposition was taken.

A criminal grand jury investigated our client, a financial services company, for money transfers in the Southwest border region. We reached a settlement with four state attorneys general that included establishing a multi-state alliance to combat illegal activity along the U.S.-Mexico border.

We represented a bank’s former CEO in a fraud and breach of fiduciary duty case against his former employer. We won two separate petitions before the California court of appeal and ultimately reached a confidential settlement.

We represented a major United States healthcare company in a federal criminal investigation conducted across multiple jurisdictions by the United States Department of Justice. Ultimately, no charges were filed against our client.

We defended WorkBrain, a Canadian workplace management software developer, against claims of patent infringement brought in the District of Utah. After developing non-infringement positions, we obtained a cross-license settlement favorable to our client.

Working alongside the Electronic Frontier Foundation, we represent AT&T customers pro bono in their suit challenging the U.S. government’s warrantless surveillance of electronic communications. Our clients assert that this surveillance violates their constitutional rights and various statutes designed to limit executive power. Following an appeal to the U.S. Court of Appeals for the Ninth Circuit, the case is currently in discovery before the district court.

We filed an amicus brief in support of leading Internet companies, regarding the application of the Section 512(c) safe harbor provision of the Digital Millennium Copyright Act. The final judgment was entered in favor of the position advocated by our clients and against the plaintiffs on all claims.