Boris Bershteyn litigates complex antitrust and competition matters before trial and appellate courts, and advises clients on regulatory and enforcement actions by government agencies and related internal investigations. He also represents businesses, sovereign entities, nonprofits, and individuals in administrative, appellate and constitutional disputes.

Bio

Mr. Bershteyn’s recent antitrust litigation representations include:

  • JP Morgan Chase in:
    • antitrust class actions and other litigation alleging that foreign currency dealers conspired to manipulate benchmark currency exchange rates;
    • antitrust class actions alleging conspiracy in the trading of federal agency bonds;
    • antitrust class actions and other litigation alleging a conspiracy among Visa, MasterCard and certain banks to fix credit and debit card interchange fees and set network rules;
    • antitrust class action alleging a conspiracy among Visa, MasterCard and certain banks concerning ATM access fees (lead counsel on successful certiorari petition to U.S. Supreme Court);
    • antitrust class action alleging a conspiracy among credit card networks and card-issuing banks in connection with the conversion to “chip” cards; and
    • antitrust class action alleging a conspiracy to restrain competition in the credit default swaps market;
  • Barclays Bank in:
    • antitrust class action and enforcement litigation by the Federal Energy Regulatory Commission related to alleged manipulation of energy markets; and
    • antitrust class actions and related state False Claims Act litigations alleging anticompetitive activity related to variable rate debt obligations;
  • HSBC in an antitrust class action alleging a conspiracy among dealers of Mexican government bonds;
  • Peco Foods in antitrust class actions alleging a conspiracy among broiler chicken producers to reduce output; and
  • multiple financial institutions in a range of antitrust investigations and enforcement actions.

Mr. Bershteyn’s recent administrative, appellate and constitutional representations include:

  • Republic of Argentina in proceedings before the U.S. Supreme Court concerning the scope of its foreign sovereign immunity;
  • underwriters of Petrobras bonds in appeal of class certification in securities action (class certification vacated by the Second Circuit);
  • Stilwell Value LLC and Joseph Stilwell in the first federal litigation challenging the constitutionality of the Securities and Exchange Commission’s administrative law judges under Article II of the U.S. Constitution. In 2015, the Stilwell settlement was shortlisted for the Financial Times' North America Innovative Lawyers report’s award for Protecting Client’s Business;
  • Canadian Imperial Bank of Commerce in complex commercial appeal;
  • California Association of Postsecondary Schools in litigation challenging a regulation by the Department of Education;
  • UniCredit S.p.A. in proceedings before the U.S. Supreme Court involving claims by the trustee for the Securities Investor Protection Act liquidation of Bernard L. Madoff Investment Securities LLC; and
  • Estée Lauder in appellate litigation involving putative consumer fraud class actions.

In addition to having argued multiple appeals, Mr. Bershteyn maintains an active appellate amicus practice, including:

  • on behalf of 25 U.S. senators in Planned Parenthood v. Smith (Fifth Circuit 2019) (reproductive rights);
  • on behalf of Intel Corporation in Helsinn Healthcare v. Teva Pharmaceuticals (U.S. Supreme Court 2018) (patent);
  • on behalf of a coalition of businesses in Texas v. United States (U.S. Supreme Court 2016 and U.S. Court of Appeals for the Fifth Circuit 2015) (executive action on undocumented immigrants);
  • on behalf of organizations of physicians and nurses in Whole Women’s Health v. Cole (U.S. Supreme Court 2016) (reproductive rights);
  • on behalf of the American Public Health Association and Whitman-Walker Health in Obergefell v. Hodges (U.S. Supreme Court 2015) (same-sex marriage equality);
  • on behalf of former government officials in King v. Burwell (U.S. Supreme Court 2015) (interpretation of the Affordable Care Act);
  • on behalf of the Carter Center in Williams-Yulee v. Florida Bar (U.S. Supreme Court 2014) (First Amendment in judicial elections);
  • on behalf of the Domestic Violence Empowerment and Legal Appeals Project in Ohio v. Clark (U.S. Supreme Court 2014) (Confrontation Clause of the Sixth Amendment);
  • on behalf of the Center for Budget and Policy Priorities and several law professors in Council of the District of Columbia v. Gray (U.S. Court of Appeals for the District of Columbia Circuit 2014) (fiscal and appropriations law); and
  • on behalf of criminology experts in Linares v. Evans (New York Court of Appeals 2015) (procedures for parole determinations).

From 2009 to 2013, Mr. Bershteyn held a number of senior legal and regulatory positions at the White House and its Office of Management and Budget (OMB). As acting administrator of the Office of Information and Regulatory Affairs (OIRA), Mr. Bershteyn headed the federal agency charged with reviewing significant regulations promulgated by other executive branch agencies. His tenure included significant rulemakings in such areas as health care, environmental protection, transportation and financial services. Mr. Bershteyn also oversaw federal policy on information, including privacy, and led the Obama administration’s initiative to promote international regulatory cooperation.

Before heading OIRA, Mr. Bershteyn served as general counsel of OMB. He coordinated all of OMB’s litigation and compliance matters and counseled the OMB director on a range of administrative, regulatory, fiscal and legislative issues. Mr. Bershteyn led OMB’s legal team during the debt ceiling crisis of 2011, potential government shutdowns and significant congressional investigations. He also was responsible for preparing draft executive orders and similar presidential documents. Mr. Bershteyn previously served as OMB’s deputy general counsel.

From 2010 to 2011, Mr. Bershteyn was a special assistant to the president and associate White House counsel, advising senior administration officials on legal aspects of regulatory, economic, health and environmental policy.

Since August 2013, Mr. Bershteyn has served as a public member of the Administrative Conference of the United States (ACUS), an independent federal agency charged with improving the federal regulatory and administrative process. From 2011 to 2013, Mr. Bershteyn served on ACUS’s 10-member governing council, to which he was appointed by President Obama.

Earlier in his career, Mr. Bershteyn served as a law clerk to Justice David H. Souter on the U.S. Supreme Court and Judge José A. Cabranes on the U.S. Court of Appeals for the Second Circuit. He also is a recipient of the Paul and Daisy Soros Fellowship for New Americans.

Mr. Bershteyn also serves as the chair of the advisory board of the Institute for Policy Integrity at New York University Law School, board member of PeerForward and is a member of The American Law Institute. Mr. Bershteyn serves on the Firm’s Hiring and Ethics committees. He has been named to The Legal 500 U.S. and was named as a 2015 Rising Star by the New York Law Journal.

Credentials

Education

  • J.D., Yale Law School, 2004 (Managing Editor, The Yale Law Journal)
  • B.A., Stanford University, 1999 (with honors)

Admissions

  • New York

Languages

  • Russian

Experience

  • Acting Administrator, Office of Information and Regulatory Affairs (2012-2013)
  • General Counsel, White House Office of Management and Budget (2011-2012)
  • Special Assistant to the President and Associate White House Counsel (2010-2011)
  • Deputy General Counsel, White House Office of Management and Budget (2009-2010)
  • Law Clerk, Hon. David H. Souter, U.S. Supreme Court (2006-2007)
  • Law Clerk, Hon. José A. Cabranes, U.S. Court of Appeals for the Second Circuit (2004-2005)

Boris Bershteyn

Partner, Complex Litigation and Trials; Antitrust/Competition
boris.bershteyn@skadden.com