Daniel A. Small became of counsel at Cohen Milstein, after being a partner for many years, when he largely retired from the practice of law in 2022. He continues to work on periodic pro bono cases with the firm and on a couple of matters nearing completion. Mr. Small was the co-chair of the Antitrust practice group for ten years. He also had the honor of serving on the firm’s Executive Committee for over a decade.
Mr. Small is one of the most respected litigators in antitrust class actions. In 2020, Law360 named him a Titan of the Plaintiffs Bar for his decades of success in antitrust and other cases, including his extensive involvement in a class action against Sutter Health that settled on the eve of trial in October 2019 for $575 million and detailed injunctive relief. He is also named on the Lawdragon 500 Leading Lawyers in America list (2018 – 2022) and the Super Lawyers’ list of Top Antitrust Litigation Attorneys in Washington, DC (2013 – 2022). Since 2009, Legal 500 has annually recognized Mr. Small and Cohen Milstein as a Leading Plaintiffs Antitrust Class Action Lawyer/Firm; Benchmark Plaintiff has repeatedly awarded Mr. Small with its National Litigation Star – Antitrust recognition; and Global Competition Review and Who’s Who Legal: Competition has named him a Leading Thought Leader – Competition since 2014.
Mr. Small is widely regarded for his intellectual energy, deep study of the economic issues underpinning antitrust disputes and 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 over one billion dollars. He has tried cases to verdict and argued in numerous appellate courts, including the U.S. Supreme Court.
Mr. Small's successes include:
- Sutter Health Antitrust Litigation (Sup. Ct., San Fran. Cty., Cal.): On August 27, 2021, the Court granted final approval of a $575 million eve-of-trial settlement, which includes significant injunctive relief, in this closely-watched antitrust class action against Sutter Health, one of the largest healthcare providers in California, for restraining hospital competition through anticompetitive contracting practices with insurance companies. Cohen Milstein was one of five firms that litigated this case since 2014 on behalf of a certified class of self-insured employers and union trust funds. California’s Attorney General joined the suit in March 2018.
- Google Wi-Fi Litigation (N.D. Cal.): Cohen Milstein served as 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. On March 18, 2020, the Honorable Charles R. Breyer of the United States District Court for the District of Northern California granted final approval of a $13 million cy pres settlement, commenting that the case was significant in that it addressed previously unexplored questions involving electronic privacy.
- Animation Workers Litigation (N.D. Cal.): Cohen Milstein served as co-lead counsel representing a class of animation and visual effects workers who alleged that Pixar, Lucasfilm, DreamWorks, Disney and other studios conspired to suppress their pay primarily though no poach agreements. The court granted final approval of $168.95 million in settlements.
- NYU Hospitals Center Litigation (S.D.N.Y.): Cohen Milstein served as lead trial counsel 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. In June 2018, the court granted defendants’ motion to dismiss the antitrust claim. All remaining claims were dismissed with prejudice in December 2018.
- Prime Healthcare Services Litigation (S.D. Cal.): 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.
- Michigan Blue Cross Litigation (E.D. Mich.): Cohen Milstein has served as 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 court granted final approval of a $30 million settlement, and the Sixth Circuit ultimately upheld the settlement on appeal.
- Hy-Ko Products Antitrust Litigation (N.D. Ohio): 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 (S.D.N.Y.): Cohen Milstein served as co-lead counsel in an end-payor 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. (Sup. Ct., Knox Cty., Me.): 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 to 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:
- Lewis v. Cain, et al. (M.D. La.): Cohen Milstein represents a certified class of more than 6,000 prisoners in a lawsuit filed against the Louisiana State Penitentiary in Angola, LA, the largest maximum-security prison in the country, and the Louisiana Department of Public Safety and Corrections for deficient and discriminatory medical care in violation of the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act. After an 11-day bench trial and extensive post-trial briefing, on March 31, 2021, the Court ruled in favor of the Plaintiffs, ordering sweeping injunctive relief and medical policy reform at the prison.
- Citizens for Responsibility and Ethics in Washington, et al. v. Trump, and District of Columbia et al. v. Trump: Cohen Milstein represented 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. After victories in the Second and Fourth Circuits on interlocutory appeal, the lawsuits were mooted when President Trump left office.
- Seeger, et al. v. United States Department of Defense (D.D.C.): 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. Cohen Milstein 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. The case is before the court on cross motions for summary judgment.
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. For several years through 2021, he was chair of the selection committee for the Jerry S. Cohen Memorial Fund Writing Award, which annually recognizes top antitrust scholarship. He remains a committee member.
Mr. Small clerked for the Honorable 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.