Ben Berkowitz litigates high-stakes business and intellectual property disputes on behalf of clients ranging from Fortune 100 companies to Silicon Valley startups. His practice focuses on helping clients in three core areas: intellectual property litigation, complex business disputes, and government investigations.
Mr. Berkowitz is an experienced litigator and an aggressive advocate who has won numerous civil and criminal cases, including as lead counsel in more than a half-dozen jury trials. He also has a track record of winning cases early in litigation and before trial though effective motion practice.
He handles cases in state and federal courts throughout the United States. He also provides counseling and advice on pre-litigation disputes that may enable successful resolution before litigation.
IP Litigation for Leading Technology Companies
Mr. Berkowitz has litigated patent and trade secret cases involving computer architecture, software design, semiconductor manufacturing, data analysis, and Internet telephony, among others. He also has litigated cutting-edge issues in the areas of copyright, trademark, and privacy law. His clients have included leading technology companies such as Genentech, Google, eBay, Facebook, Palantir Technologies, Taiwan Semiconductor Manufacturing Company (TSMC), and Yahoo! He also has represented technology startups and their founders.
Mr. Berkowitz has helped numerous companies litigate and win their most challenging business and contract disputes, including shareholder and partnership disputes, antitrust, licensing, business fraud, professional liability, unfair competition, breach of fiduciary duty, breach of contract, and class action suits. He has represented leading companies in a variety of industries, including financial services, healthcare, and venture capital.
Government Investigations & Litigation
Mr. Berkowitz has helped companies and their senior executives successfully respond to, navigate, and prevail in a variety of government inquires. He has defended clients successfully in criminal investigations involving such allegations as price fixing, securities fraud, government contracting fraud, and money laundering.
Pro Bono & Community Involvement
Mr. Berkowitz maintains an active pro bono practice and dedicates his time to several community and non-profit organizations. He presently serves on the Board of Directors of the American Constitution Society (Bay Area Chapter), which works to promote the U.S. Constitutional values of individual rights and liberties, genuine equality, access to justice, democracy, and the rule of law. He previously served as Chair of the Advancement Committee for Asylum Access, an innovative San Francisco non-profit advocating for the human rights of refugees in Africa, Asia, and Latin America.
Mr. Berkowitz lives in Marin with his wife, son, and dog.
Cases of Note
Cobarruviaz, et al. v. Instacart: We defeated a putative class action filed against a leading on-demand technology company, Instacart, which connects customers with personal shoppers for grocery shopping and home delivery. The class action addressed an issue critical to the new “sharing economy”: whether personal shoppers who use Instacart’s technology platform were properly considered independent contractors rather than employees. The court issued its order dismissing the class action claims on November 3, 2015.
United States v. McKesson Corporation: 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.
Ziptronix v. Taiwan Semiconductor Manufacturing Company: 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.
Former Client v. Law Firm: 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.
Javorsky v. Western Athletic Clubs, Inc.: 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.
International Airline v. Internet Search Engine: 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.
Internet Startup Shareholder Dispute: 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.
State of Arizona v. Financial Services Company: 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.
Former Chief Executive Officer v. Bank: 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.
United States v. U.S. Healthcare Company: 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.
Plaintiff v. WorkBrain: 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.
Plaintiffs v. National Security Agency: 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.
Viacom International Inc. et al. v. You Tube Inc. et al. : 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.
Presentations and Publications
- Co-Author, "Trade Secret Law: A Brief Guide for In-House Counsel," InsideCounsel, 2016
- Faculty, "Federal Court Boot Camp," Pincus Professional Education, 2016
- Faculty, "Defending FCA Lawsuits Based on the “Swapping” Theory of Anti-Kickback Liability," American Health Lawyers Association Fraud and Compliance Forum, 2015
- Author, "An Entrepreneur's Guide to Getting Sued and Fighting Back," Entrepreneur, 2014
- Faculty, National Institute for Trial Advocacy, 2014
- Faculty, "Federal Court Boot Camp," Pincus Professional Education, June 2014
- Moderator, "Restorative Justice and Our Communities," American Constitution Society and the National Council on Crime and Delinquency, 2014
- Faculty, "Superior Court Boot Camp," Pincus Professional Education, October 2013
- Moderator, "Forty Years after Roe: Examining the Social, Political and Economic Impact of the Constitutional Right to Abortion," March 2013, American Constitution Society
- Lecture, "Digital Property, Extraterritoriality, and the Evolution of the First Sale Doctrine," March 2011, University of California Berkeley Center for Law & Technology
- Lecture, "Hot Topics in Copyright Law," October 2011, University of California Berkeley Center for Law & Technology
- Board Member, American Constitution Society (Bay Area Lawyers Chapter)
- Executive Committee, Harvard Law School Alumni Association of Northern California
Awards and Honors
- Executive editor, Harvard Civil Rights - Civil Liberties Law Review
- Phi Beta Kappa, University of Pennsylvania