Benjamin D. Brown is a partner at Cohen Milstein and co-chair of the Antitrust practice. Mr. Brown is also the chairman of the firm’s Executive Committee and the Managing Partner-Elect.
Mr. Brown, who previously served in the Antitrust Division of the United States Department of Justice, brings to his role extensive experience leading complex litigation, particularly antitrust class actions.
Mr. Brown has been appointed by federal courts to serve as co-lead counsel for plaintiffs in numerous important matters, such as In re Plasma-Derivative Protein Therapies Antitrust Litigation (N.D. Ill.); Carlin, et al. v. DairyAmerica, Inc. (E.D. Cal.); and Mixed Martial Arts (MMA) Antitrust Litigation (D. Nev.). He has led cases through trial and argued appeals and stands ready to take cases through to the finish line.
Mr. Brown is also an adjunct professor at Georgetown Law School, where he teaches Complex Litigation, a course that explores the policy and procedures implicated by aggregated, high stakes, multi-party litigation, especially class actions.
Mr. Brown is also a leader in the area of takings cases, claims that are brought under the Fifth Amendment of the U.S. Constitution for the unconstitutional taking of property without compensation. He also represents individuals or groups in litigations and confidential arbitrations involving complex commercial disputes, particularly those involving regulated markets.
Currently, Mr. Brown is serving as lead or co-lead counsel on a number of large, complex antitrust cases. He charts the course of his cases from deciding on the claims to be brought, to the litigation strategy to be pursued, and through the approach to settlement or trial.
Notable matters include:
- Mixed Martial Arts (MMA) Antitrust Litigation (D. Nev.): Cohen Milstein is co-lead counsel in a class action on behalf of MMA fighters alleging that Zuffa LLC – commonly known as the Ultimate Fighting Championship or “UFC” – has unlawfully monopolized the markets for promoting live professional MMA bouts and for purchasing the services of professional MMA fighters. The district court denied the defendant’s motion to dismiss the case in September 2015 and discovery is ongoing. Mr. Brown is co-lead in this class action.
- Moehrl v. National Association of Realtors, et al. (N.D. Il.): Cohen Milstein is co-lead counsel in a class action on behalf of home sellers in twenty major metropolitan areas throughout the United States against the National Association of Realtors (NAR) and the nation's four largest real estate brokers and franchisors. Plaintiffs allege a conspiracy to require home sellers to pay the broker representing the buyer of their homes, and to pay at an inflated amount, in violation of federal antitrust law. The district court denied the defendants' motions to dismiss in October 2020 and Plaintiffs filed their motion for class certification in February of 2022. Mr. Brown is co-lead in this class action.
- In Re: Rail Freight Fuel Surcharge Antitrust Litigation II (D.D.C.): Mr. Brown represents three of the world’s largest container shippers—Yang Ming, NYK, and “K” Line—in antitrust lawsuits filed in the U.S. District Court for the District of Columbia against the four largest United States railroads. Plaintiffs allege that, beginning as early as July 1, 2003, Defendants conspired to price fix Plaintiffs’ intermodal contracts in violation of Section 1 of the Sherman Act, including by agreeing to impose similar or identical rail freight fuel surcharges (“FSCs”) in their multi-year contracts.
- Pacific Steel Group v. Commercial Metals Company, et al. (N.D. Ca.): Mr. Brown represents Pacific Steel Group, a steel rebar fabricator located in San Diego, California, seeking damages and injunctive relief against Commercial Metals Company or "CMC" for violations of antitrust and other laws. As alleged, Pacific Steel Group decided to build a steel mill to produce rebar in order to become a more efficient competitor through vertical integration. Because the mill would have created competition for CMC in the local rebar manufacturing market that CMC currently dominates, the complaint alleges CMC took various actions to delay or prevent Pacific Steel from building its mill. The district court denied CMC's motion to dismiss In April 2022.
Mr. Brown is also currently litigating a number of takings lawsuits, including the following notable matters:
- Ideker Farms, et al. v. United States of America (Fed. Cl.): Cohen Milstein represents Ideker Farms and more than 400 other plaintiffs located in six states along the Missouri River in a landmark mass action lawsuit in the U.S. Court of Federal Claims alleging that the federal government took land and flooding easements over lands owned by farmers without any compensation in violation of the takings clause of the Fifth Amendment. Mr. Brown has helped lead the litigation team, including during both a months-long liability trial in 2017, and a subsequent damages trial in 2020 for bellwether plaintiffs. During those trials, Mr. Brown directed and cross-examined numerous witnesses, including eleven different experts. In December 2020, the Court ruled largely in favor of bellwether plaintiffs. An appeal to the Federal Circuit was heard in 2022.
- Milne v. United States of America (Fed. Cl.): Cohen Milstein represents over 60 individual plaintiff farmers and a proposed class of additional farmers and landowners in a Fifth Amendment takings case that overlaps substantially with the Ideker case. Mr. Brown helps spearhead that litigation.
Mr. Brown joined Cohen Milstein in 2005, following four years as a trial attorney with the Antitrust Division of the United States Department of Justice. At the Department of Justice, Mr. Brown led and assisted in numerous investigations, litigations and trials involving antitrust activity and mergers. Mr. Brown also served as a Special Assistant United States Attorney in the Eastern District of Virginia, where he prosecuted criminal cases. Prior to serving in the U.S. Department of Justice, Mr. Brown was in private practice with one of Washington’s most prestigious defense firms, where he counseled defendants in antitrust litigation matters. This experience has provided him with insights into defense strategies and has earned him the respect of defendants’ counsel.
Mr. Brown has been recognized as one of the nation's "Leading 500 Lawyers in America" by Lawdragon. The Legal 500 has also recognized Mr. Brown as one of the nation’s leading class action antitrust attorneys. Mr. Brown is annually recognized in Global Competition Review's Who’s Who Legal: Thought Leaders – Competition, and he has been listed as one of Washington D.C.’s "Leading Star” Plaintiffs’ Litigators by Benchmark Litigation, recognizing his writing, his depositions and his arguments in court. He is a frequent panelist at legal industry gatherings and is a recognized expert on antitrust litigation whose opinions on the newest developments and trends in antitrust litigation are often quoted in the media. Mr. Brown is a contributing author of the ABA’s Antitrust Class Actions Handbook and served as a state editor for the ABA's Survey of State Class Action Law. He authored several chapters on private antitrust recovery actions for the Global Competition Review's Antitrust Review of the Americas, and co-authored with fellow partner Douglas Richards, “Predominance of Common Questions – Common Mistakes in Applying the Class Action Standard,” Rutgers Law Journal (Vol. 41).
Mr. Brown is currently serving on the Advisory Board of the Institute for Consumer Antitrust Studies at Loyola University Chicago's School of Law.
Mr. Brown attended the University of Wisconsin – Madison, where he graduated Phi Beta Kappa, majoring in Philosophy, and earned his J.D., from Harvard Law School, graduating cum laude. He served as Law Clerk to the Hon. Chief Judge Juan R. Torruella, U.S. Court of Appeals for the First Circuit. The United States District Court for the District of Columbia has honored Mr. Brown for his outstanding commitment to pro bono litigation.