Boris Bershteyn

Boris Bershteyn

Partner, Complex Litigation and Trials; Antitrust/Competition
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:

  • JPMorgan Chase in:
    • antitrust class actions and other litigation alleging that foreign currency dealers conspired to manipulate benchmark currency exchange rates
    • antitrust class actions alleging a conspiracy in the trading of federal agency bonds
    • antitrust class actions and other litigation alleging a conspiracy among Visa, MasterCard and certain banks to set credit and debit card interchange fees and network rules
    • an antitrust class action alleging a conspiracy concerning ATM access fees (lead counsel on successful certiorari petition to U.S. Supreme Court)
    • an antitrust class action alleging a conspiracy to restrain competition in the credit default swaps market
  • Barclays Bank in:
    • an antitrust class action and enforcement litigation by the Federal Energy Regulatory Commission related to alleged manipulation of energy markets
    • antitrust class actions and related state False Claims Act litigations alleging anticompetitive activity related to variable rate debt obligations
  • Caesars Entertainment in antitrust class actions based on allegations of algorithmic pricing of hotel rooms
  • International Flavors & Fragrances in antitrust class actions alleging a conspiracy to restrain competition in the fragrance industry
  • Sabre Corporation in a jury trial over monopolization claims concerning travel-related software and technology
  • HSBC in an antitrust class action alleging a conspiracy among dealers of Mexican government bonds
  • subsidiaries of Glencore in antitrust class actions concerning warehousing and trading of aluminum and zinc
  • Peco Foods in antitrust class actions alleging a conspiracy among broiler chicken producers to reduce output and employee wages
  • Citigroup in an antitrust class action alleging a conspiracy among dealers of U.K. government bonds
  • UniCredit in an antitrust class action alleging a conspiracy among dealers of European government bonds
  • multiple financial institutions in a range of antitrust investigations and enforcement actions

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

  • New York and Presbyterian Hospital in litigation against the federal government
  • the Republic of Argentina in proceedings before the U.S. Supreme Court concerning the scope of its foreign sovereign immunity
  • underwriters of Petrobras' bonds in an appeal of class certification in a securities action (class certification vacated by the Second Circuit)
  • Stilwell Value LLC and Joseph Stilwell in the first 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
  • California Association of Postsecondary Schools in litigation challenging a regulation by the Department of Education
  • 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 and has represented:

  • over 250 members of Congress in FDA v. Alliance for Hippocratic Medicine (U.S. Supreme Court 2023) (administrative law)
  • scholars of habeas corpus in Shinn v. Ramirez (U.S. Supreme Court 2021)
  • criminal law scholars in New York Rifle & Pistol Assn. v. Corlett (U.S. Supreme Court 2021)
  • 25 U.S. senators in Planned Parenthood v. Smith (Fifth Circuit 2019) (reproductive rights)
  • Intel Corporation in Helsinn Healthcare v. Teva Pharmaceuticals (U.S. Supreme Court 2018) (patent)
  • 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)
  • organizations of physicians and nurses in Whole Women’s Health v. Cole (U.S. Supreme Court 2016) (reproductive rights)
  • the American Public Health Association and Whitman-Walker Health in Obergefell v. Hodges (U.S. Supreme Court 2015) (same-sex marriage equality)
  • former government officials in King v. Burwell (U.S. Supreme Court 2015) (interpretation of the Affordable Care Act)
  • the Carter Center in Williams-Yulee v. Florida Bar (U.S. Supreme Court 2014) (First Amendment in judicial elections)
  • the Domestic Violence Empowerment and Legal Appeals Project in Ohio v. Clark (U.S. Supreme Court 2014) (Confrontation Clause of the Sixth Amendment)

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.

In 2019, Mr. Bershteyn was named as a senior fellow of the Administrative Conference of the United States (ACUS), an independent federal agency charged with improving the federal regulatory and administrative process, after having served as a public member since August 2013. Additionally, from 2011 to 2013, Mr. Bershteyn served on ACUS’ 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, a board member of PeerForward and Volunteers of Legal Service, a member of The American Law Institute and a trustee of the U.S. Supreme Court Historical Society. Mr. Bershteyn serves on the firm's Diversity, Ethics, Hiring and Pro Bono committees.

In recognition of his work, Mr. Bershteyn has been named to Chambers USA and The Legal 500 U.S. and as one of Lawdragon’s 500 Leading Litigators in America, in addition to being previously honored as a 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