Brian A. Berkley is an associate with Pepper Hamilton LLP, resident in the Philadelphia office. Mr. Berkley concentrates his practice on commercial litigation, with a particular emphasis on arbitration and complex breach of contract litigation, securities, financial services, and mergers and acquisition-related litigation, business tort and non-compete litigation, international matters, and First Amendment and media litigation. He has provided successful representation to Fortune 500 companies, midsize companies, and national and international clients.
The following matters are representative of Mr. Berkley’s practice:
Arbitration and Complex Breach of Contract Litigation
- successfully defended against breach of contract claims, breach of fiduciary duty claims and fraud claims in arbitration on behalf of a major dialysis provider
- successfully prosecuted a breach of exclusive supplier contract claim in AAA arbitration on behalf of major bottling company, leading to a favorable monetary settlement
- successfully prosecuted breach of contract claim in arbitration on behalf of major medical products supplier, leading to a favorable monetary settlement
- currently defending medical device manufacturer in large, complex multi million dollar AAA arbitration
- successfully prosecuted breach of contract claim on behalf of large real estate company against national hotel chain, leading to a favorable monetary settlement
- currently defending large regional bank in breach of contract litigation involving a software contract
- defended large software provider in mediation against quasi-governmental agency.
Because of his experience in commercial arbitrations, Mr. Berkley routinely counsels clients on the drafting of arbitration clauses and the advantages and disadvantages of arbitration. He has guest lectured at a local law school on the unique procedures that apply in arbitration. He also has written or co-written on arbitration law, including the March 29, 2012 Pepper Client Alert, “Quilloin May Limit Companies’ Risk of Class Actions.”
Securities, Financial Services, and Mergers and Acquisition-Related Litigation
- Alliance Industries, Inc. v. Longyear Holdings, Inc., 2012 U.S. Dist. LEXIS 25743 (W.D.N.Y. Feb. 26, 2012) – won summary judgment on behalf of large mining exploration company, defeating breach of contract and tort claims while obtaining award for breach of representations and warranties in asset acquisition agreement (fee petition pending)
- represented mortgage company in trading desk dispute, leading to an early cost-saving settlement
- currently defending executive in breach of fiduciary duty litigation in Delaware Chancery Court relating to merger
- defended bank in shareholders litigation related to bank acquisition
- represented a pharmaceutical company in connection with a Financial Industry Regulatory Authority (FINRA) investigation
- represented a private-equity client in connection with an SEC investigation
- defended against a securities class action and related derivative action on behalf of a real estate investment trust, its directors and officers.
Mr. Berkley is a member of the firm's Securities and Financial Services Enforcement Group. He routinely counsels clients on an array of financial regulatory issues, including providing legal advice in connection with risk assessments conducted in accordance with the Bank Secrecy Act/Anti-Money Laundering regulations. Mr. Berkley also counsels corporate clients on litigation risks associated with mergers and acquisitions. He has written on matters concerning securities litigation, including the January 2009 Pepper Securities Litigation Alert, “Pennsylvania Superior Court Provides Guidance on Special Litigation Committees.”
Business Torts and Non-Compete Litigation
- lead counsel on behalf of large insurance company successfully enforcing a non-solicitation agreement and favorably prosecuting tortious interference claim against a former broker and his new employer, resulting in a favorable settlement securing a stipulated injunction enforcing the agreement’s terms and monetary payment
- lead counsel successfully defended against enforcement of a non-solicitation agreement, tortious interference claim, and fraud claims against a large insurance company and broker, resulting in favorable settlement
- successfully obtained dismissal at the motion to dismiss stage of unfair trade practices claim against large pharmaceutical company.
Mr. Berkley is a current website and social media editor for the American Bar Association's Business Torts Litigation Committee. From 2011-2012 he was a co-chair of the Unfair Trade Practices Subcommittee of the Business Torts Litigation Committee. He routinely counsels clients on the enforcement of non-compete, non-solicitation claims and issues related to business tort litigation.
Mr. Berkley has obtained several early dismissals on behalf of international clients in U.S. courts, thereby saving international clients from the costs of U.S. discovery. Representative matters include:
- Princeton Football Partners LLC v. Football Association of Ireland, Civ. No. 11-5227 (D.N.J. July 23, 2012) – on behalf of premier Irish soccer association, obtained dismissal based on doctrine of forum non conveniens of complaint alleging RICO, breach of contract, and tort claims
- Fernandez v. BLM Group, Case No. 08-21240 (S.D. Fla.) – on behalf of Italian manufacturer, obtained dismissal based on lack of personal jurisdiction of complaint alleging product liability claims.
In addition, Mr. Berkley has represented international companies in matters that have involved U.S. discovery. He also has counseled international clients on matters pending outside of the United States. Currently he is counseling and coordinating litigation in India and related international arbitration proceedings in Europe on behalf of a French company.
First Amendment and Media Litigation
Mr. Berkley wins cases on behalf of clients relating to First Amendment litigation. Representative matters include:
- Coppola v. Larson, Civ. No. 06-2138 (D.N.J. 2006) - obtained, on behalf of college student newspaper editors in pro bono matter, a preliminary injunction reinstating the student’s faculty advisor. The decision was the first of its kind to recognize that the First Amendment rights of student newspaper editors can be violated by the removal of their faculty advisor. The decision received local and national media attention, and the matter was later favorably settled.
- Startzell v. City of Philadelphia, Civ. Act. No. 05-05287 (E.D. Pa. 2007) (affirmed by Third Circuit) – obtained summary judgment on behalf of parade organizers against protestors who claimed the organizers conspired with the City of Philadelphia to restrict their First Amendment rights. The protest received national media attention.
In addition, Mr. Berkley defends major newspapers and other media clients in defamation cases brought by government officials and other high-profile plaintiffs. He has written on issues relating to defamation, including “Early Mitigation of Defamation Damages,” which he co-wrote and which was published in the Fall 2012 issue of the ABA’s Business Torts Litigation Newsletter (Vol. 20, No. 1).
Mr. Berkley also has an active pro bono practice. He is the co-founder of Pepper’s Veterans’ Rights Pro Bono Practice Group, which focuses on providing crucial legal representation to indigent veterans in Philadelphia. Mr. Berkley has been lead counsel in prisoners’ civil rights litigation. He has represented Disability Rights of New Jersey, helping to ensure protection of the constitutional rights of disabled New Jersey residents. Mr. Berkley also was a member of a Pepper team that filed an amicus brief before the Third Circuit on behalf of the Student Press Law Center, advocating that school authority did not extend to limiting student speech expressed off-campus over the Internet. Mr. Berkley also represented Elton John’s AIDS Foundation in defense and protection of the foundation’s intellectual property.
In addition to those mentioned above, Mr. Berkley’s publications also include:
- “Criminal Conviction Background Checks: Can Employers Avoid Discrimination and Liability in the Hiring Process?” (co-author), Privacy & Data Security Law Journal (2006)
- “Making Gay-Straight Alliance Groups Curriculum-Related: A New Tactic for Schools Trying to Avoid the Equal Access Act” (Note), 61 Washington and Lee Law Review 1847 (2004).
In his free time Mr. Berkley volunteers for Philadelphia Futures as a mentor to an economically disadvantaged Philadelphia high school student for purposes of assisting to prepare the student for entry into and then graduation from college. He enjoys running, boxing, and is a rugby enthusiast who has played internationally.
Mr. Berkley received his J.D. degree, cum laude, from Washington and Lee School of Law in 2005, where he was a staff writer for the Law Review and was inducted into the Omicron Delta Kappa leadership honor society. He was an Oral Argument and Best Brief finalist for Moot Court, and also served as a Burks Scholar teaching first-year law students research and writing skills. He participated in a study abroad program at the National University of Ireland, Galway (NUI Galway) in 1999. From 2006-2007, Mr. Berkley was a law clerk to the Honorable James F. McClure, Jr., U.S. District Judge for the Middle District of Pennsylvania.
Mr. Berkley is admitted to practice in Pennsylvania and New Jersey, and before the U.S. District Court for the Eastern District of Pennsylvania, the District of New Jersey and the U.S. Court of Appeals for the Tenth Circuit.