Daniel A. Small is a Partner at Cohen Milstein and Co-Chair of the firm’s Antitrust practice group, a role and honor which he has held on and off since 2008. He is also a member of the firm’s Executive Committee.
Mr. Small is widely regarded for his intellectual energy, deeply studying the economic issues underpinning antitrust disputes and developing a sophisticated understanding of how conspiracies and monopolies operate in a range of complex markets – from animation and visual effects workers and computer software and hardware to wild blueberries and hospital nurses – and achieving just compensation for victims and promoting more open markets nationwide.
Mr. Small has represented plaintiff classes, and defended unions, as lead or co-lead counsel in numerous antitrust cases and obtained settlements and judgments totaling hundreds of millions of dollars. He has tried cases to verdict and argued in numerous appellate courts, including the U.S. Supreme Court.
Currently, Mr. Small is litigating the following notable matters:
- Sutter Health Antitrust Litigation: Cohen Milstein is part of a small team of firms representing a certified class of self-funded employers and union trust funds against Sutter Health, a large hospital chain in Northern California, for restraining hospital competition through anticompetitive provider agreements.
- Animation Workers Litigation: Cohen Milstein serves as co-lead counsel representing a class of animation and visual effects workers who allege that Pixar, Lucasfilm, DreamWorks and other studios conspired to suppress their pay. The court granted final approval of $168.5 million in settlements.
- Michigan Blue Cross Litigation: Cohen Milstein is co-lead counsel in this class action challenging Michigan Blue Cross’s use of most favored nation provisions in its provider agreements with numerous hospitals in Michigan. The class secured a $30 million settlement, pending approval by the United States District Court for the Eastern District of Michigan.
- NYU Hospitals Center Litigation: Cohen Milstein is defending 1199SEIU United Healthcare Workers East against an antitrust claim by NYU Hospitals Center alleging that 1199SEIU conspired with a multi-employer bargaining association and others to increase NYU’s required contributions to the Union’s benefit fund.
- Google Wi-Fi Litigation: Cohen Milstein is co-lead counsel in a nationwide class action alleging that Google violated the Wiretap Act when its Street View vehicles secretly collected payload data from unencrypted Wi-Fi networks. Plaintiffs defeated a motion to dismiss raising novel Wiretap Act issues, and the ruling was affirmed on interlocutory appeal to the Ninth Circuit.
Past successes include:
- Prime Healthcare Services Litigation: Cohen Milstein defended the Service Employees International Union in an antitrust action brought by Prime Healthcare Services, a hospital chain in Southern California, alleging that SEIU conspired with Kaiser Permanente to drive Prime and certain other hospitals out of the market. Cohen Milstein led the successful effort to dismiss the complaint and amended complaint in the Southern District of California and to defend the dismissal on appeal to the Ninth Circuit.
- Hy-Ko Products Antitrust Litigation: Cohen Milstein represented Hy-Ko Products Co., a manufacturer of keys and key duplication machines, in a monopolization case against its dominant competitors. The litigation settled on favorable terms.
- In re Buspirone Antitrust Litigation: Cohen Milstein served as co-lead counsel in a class action alleging that Bristol Myers-Squibb Co., the manufacturer of the prescription drug Buspar, conspired to keep generic versions of the drug out of the market. The class of end-payors settled for $90 million.
- Pease v. Jasper Wyman & Son, et al.: Cohen Milstein was lead counsel representing a class of wild blueberry growers in Maine who sued four blueberry processors for conspiring to depress blueberry prices. The case was tried before a jury in Maine state court, where Mr. Small was co-lead trial counsel. The jury found the processors liable for 100% of the damages estimated by plaintiffs’ expert, resulting in a judgment of $56 million.
Mr. Small also maintains an active pro bono practice. Current notable cases include:
- Citizens for Responsibility and Ethics in Washington, et al. v. Trump, and District of Columbia et al. v. Trump: Cohen Milstein is representing restaurant and hotel plaintiffs and the Attorneys General of Maryland and the District of Columbia in lawsuits against President Trump, seeking to enjoin his ongoing receipt of emoluments in violation of the U.S. Constitution.
- Seeger, et al. v. United States Department of Defense: Cohen Milstein is representing a group of civilian and military lawyers who represent a detainee in the military commission proceedings at the Guantánamo Bay naval station. Represented by Cohen Milstein, this group of lawyers filed a lawsuit under the Administrative Procedure Act against the Department of Defense, the Navy, and the Convening Authority, claiming that military commission personnel have been forced to live and work for years in facilities that have been found to have dangerous levels of cancer-causing chemicals and other toxic substances, ranging from formaldehyde to heavy metals and mold.
Mr. Small is one of the most respected litigators in antitrust class actions. Since 2009, Legal 500 annually recognizes Mr. Small and Cohen Milstein as “Leading Plaintiffs Antitrust Class Action Lawyer/Firm”; Benchmark Plaintiff has repeatedly awarded him with its “National Litigation Star – Antitrust”; in 2014, International Who’s Who of Competition Lawyers & Economists named him "Leading Competition Lawyer"; and in 2018 Mr. Small was named a Lawdragon 500 Leading Lawyer.
In 2018, Mr. Small, Cohen Milstein, and the co-lead counsel team in Animation Workers Antitrust Litigation were nominated for Public Justice Foundation’s Trial Lawyer of the Year, recognizing the legal teams that made the most outstanding contributions to the public interest through precedent-setting or otherwise extraordinary litigation concluded within the last year.
Mr. Small serves on the Advisory Board of the American Antitrust Institute (AAI), a pre-eminent thought-leadership organization devoted to promoting competition. He is also Chair of the selection committee for the Jerry S. Cohen Memorial Fund Writing Award, which annually recognizes top antitrust scholarship.
Mr. Small clerked for the Honorable Judge Roger Vinson, United States District Court for the Northern District of Florida, from 1986 to 1988.
Mr. Small attended Colgate University, where he graduated with a B.A., cum laude, in History. He earned his J.D. at American University’s Washington College of Law.