Mitchell R. Berger

Foreign Financial Institutions

• In the “9/11 Attacks” litigation, twice obtained dismissal of Anti-Terrorism Act (ATA) claims against Saudi Arabia’s largest bank by demonstrating the absence of US jurisdiction. 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 a government-owned Chinese bank, obtained the dismissal of foreign law claims alleging the knowing provision of financial services to US-designated FTOs. Wultz, 2012 WL 5431013 (S.D.N.Y. Nov. 5, 2012), 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

• Successfully challenged constitutionality of jurisdictional statute targeting foreign government in ATA cases. Fuld, 82 F.4th 74 (2d Cir. 2023, reh’g denied, 101 F.4th 190 (2d Cir. 2024).
• Defeated US jurisdiction over a foreign government in the first decision to interpret the Anti-Terrorism Clarification Act of 2018 (ATCA). Klieman, 923 F.3d 1115 (D.C. Cir. 2019), reinstated in relevant part (D.C. Cir. 2020)
• In the “Second Intifada” ATA litigation, obtained reversal of a US$655.5 million judgment against a foreign government by demonstrating the absence of US jurisdiction. Waldman, 835 F.3d 317 (2d Cir. 2016), cert. denied (2018). Twice defeated motion to recall mandate and reinstate judgment based on ATCA. Waldman, 925 F.3d 570 (2d Cir. 2019), 82 F.4th 64 (2d Cir. 2023).
• 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 (2018).
• Won summary judgment on ATA claims for a foreign government on key evidentiary grounds. Gilmore, 843 F.3d 958 (D.C. Cir. 2016), cert. denied (2017).
• Won summary judgment on ATA claims based on lack of proximate cause. Shatsky, 955 F.3d 1016 (D.C. Cir. 2020)
• 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 legal fees based on insurer’s refusal to provide policy benefits. Liability judgment and lawyers’ fees affirmed by the Ninth Circuit Court of Appeals. Mosten, 62 Fed. App’x 175 (9th Cir. 2003).
• 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).