Mitch Berger has been litigating high-value commercial and enforcement disputes for 40 years throughout the US, for plaintiffs and defendants, against private parties and government entities. He has tried numerous cases to judgment before judges and juries and has argued in most federal and several state appellate courts. He regularly counsels US and overseas financial institutions, multinational corporations and foreign governments, agencies and officials. He also represents targets and witnesses before committees of the US Congress, federal enforcement agencies and grand juries.

    Mitch serves as global co-chair of our Litigation Practice.

    Before joining the firm, he was an assistant US attorney in Washington DC and a trial lawyer at the US Department of Justice, where he represented the government in major civil litigation in trial and appellate courts.

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    Foreign Financial Institutions

    • In the “9/11 Attacks” litigation, twice obtained dismissal of “terrorism” claims against Saudi Arabia’s largest bank, defeating wide-ranging claims of jurisdiction over the bank’s actions outside the US. In re Terrorist Attacks, 295 F. Supp. 3d 416 (S.D.N.Y. 2018); O’Neill, 714 F.3d 659 (2d Cir. 2013), cert. denied, 134 S. Ct. 2870 (2014).
    • In ATA litigation against government-owned Bank of China, obtained the dismissal of foreign law claims alleging the knowing provision of financial services to US-designated FTOs, demonstrating that the bank’s actions did not violate the laws of its home country. Wultz v. Bank of China Ltd., 2012 WL 5431013 (S.D.N.Y. Nov. 5, 2012); Wultz v. Bank of China Ltd., 2013 WL 1641179 (S.D.N.Y. Apr. 16, 2013).

    US Financial Institutions

    • Obtained US$96.7 million judgment against the US government for breach of contract to provide economically favorable regulation of savings and loans acquired out of government receivership. Bluebonnet Savings Bank, 466 F.3d 1349 (Fed. Cir. 2006).

    Foreign Governments and Officials

    • Defeated US jurisdiction over the Palestinian government in the first decision to interpret the Anti-Terrorism Clarification Act of 2018 (ATCA), and narrowing the ability of private parties to bring ATA suits. Klieman, 923 F.3d 1115 (D.C. Cir. 2019). The plaintiffs are petitioning for certiorari.
    • In the “Second Intifada” ATA litigation, obtained reversal of a US$655.5 million judgment against the Palestinian Authority (PA) and the Palestine Liberation Organization (PLO), demonstrating the absence of US jurisdiction over actions of the PA and PLO in their home territory. Waldman v. PLO, 835 F.3d 317 (2d Cir. 2016). Defeated a highly politicized effort to obtain Supreme Court review, winning a supporting brief from the Solicitor General. Waldman, cert. denied, 138 S.Ct. 1438 (2018). Defeated motion to recall mandate and reinstate judgment based on ATCA. Waldman v. PLO, 925 F.3d 570 (2d Cir. 2019).
    • Established key appellate precedent confirming due process protection against US jurisdiction for a foreign government. Livnat, 851 F.3d 45 (D.C. Cir. 2017), cert. denied, 139 S.Ct. 373 (2018).
    • Won affirmance of summary judgment for a foreign government on key evidentiary grounds. Gilmore, 843 F.3d 958 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 88 (2017).
    • Won summary judgment on ATA claims based on lack of proximate cause, and defeated motion to alter or amend the judgment. Shatsky v. PLO, 2017 U.S. Dist. LEXIS 94946 (D.D.C. June 20, 2017) (summary judgment); Shatsky v. PLO, 292 F. Supp. 3d 188 (D.D.C. 2017).
    • Obtained dismissal of claims against foreign head of state based on official immunity. Manoharan, 711 F.3d 178 (D.C. Cir. 2013).
    • Ongoing defense of foreign governments, agencies and officials.

    Commercial Litigation

    • After jury trial, obtained multimillion-dollar judgments for commercial property-owner, an affiliate of a Middle East sovereign wealth fund, for insurance benefits and lawyers' fees, based on insurer's refusal to provide policy benefits. Liability judgment and lawyers' fees affirmed before the Ninth Circuit Court of Appeals.
    • On an unusual interlocutory appeal to the Georgia Court of Appeals, obtained summary judgment dismissing fraud and racketeering claims in connection with a commercial real estate transaction. Savage, 260 Ga.App. 770 (2003).
    • At the trial and appeals court levels, successfully defended fraud claims in connection with a venture capital company's sale of internet-related business. Valassis Communications, 304 A.D.2d 448 (N.Y. 1st Dept. 2003).

    Congressional and Federal Agency Investigations

    • Representation of financial institutions and major corporations before the primary House and Senate oversight and investigations committees and federal regulators.

    Government Claims

    • Defense and resolution of complex claims by federal and state government agencies relating to the energy and financial services sectors.

    Education

    • Harvard Law School, J.D., cum laude, 1979
    • University of Pennsylvania, M.A., B.A., summa cum laude, 1976

    Admissions

    • District of Columbia, 1985
    • New York, 1980

    Courts

    • U.S. District Courts for the District of Columbia; Southern, Eastern and Western Districts of New York; Northern District of California; and Eastern and Western Districts of Texas
    • U.S. Courts of Appeals for the District of Columbia, Federal, 1st, 2nd, 3rd, 4th, 5th, 7th and 9th Circuits
    • U.S. Court of Federal Claims
    • U.S. Tax Court
    • U.S. Supreme Court
    • Recognized for Commercial Litigation by The Best Lawyers in America
    • Recognized Individual, General Corporate, Benchmark Litigation, 2013, 2014
    • Washington, D.C. Super Lawyers – Business Litigation, 2007, 2008, 2009, 2012

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