Daniel A. Small is a Partner at Cohen Milstein and the immediate past Co-Chair of the firm’s Antitrust practice group, a role and honor which he has held on and off since 2008. He also had the honor of serving on the firm’s Executive Committee for over a decade through 2019.
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 – 2021) and the Super Lawyers’ list of Top Antitrust Litigation Attorneys in Washington, DC (2013 – 2021). 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, 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 over one billion 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 (Sup. Ct., San Fran. Cty., Cal.): 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 contracting practices. In October 2019, on the eve of trial, the case settled for $575 million and comprehensive injunctive relief. On March 9, 2021 the Court granted preliminary approval of the settlement. The final approval hearing occurred on July 22, 2021.
- Rotavirus Vaccines Antitrust Litigation (E.D. Pa.): Cohen Milstein developed and filed a proprietary case against Merck & Co., Inc. on behalf of a class of direct purchasers, alleging that Merck engaged in an anticompetitive bundled discount scheme to maintain its monopoly power in the rotavirus vaccines market after entry by GlasxoSmithKline plc. Cohen Milstein is co-lead counsel.
- National Association of Realtors Litigation (N.D. Ill.): Cohen Milstein, as co-lead counsel, is representing home sellers in a class action against the National Association of Realtors and four of the largest national real estate broker franchisors for conspiring 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.
- Google Wi-Fi Litigation (N.D. Cal.): 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. The court approved a $13 million settlement in March 2020. The settlement is on appeal to the Ninth Circuit.
Past successes include:
- 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.
- 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.
- 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. 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. 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. 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 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.