Matthew D. Berkowitz

About Matthew D. Berkowitz

Matthew D. Berkowitz is an experienced civil litigator with significant class action experience who represents businesses and professionals in complex disputes. At the trial and appellate levels, he has successfully defended clients in shareholder derivative suits, trademark infringement claims, and breach of contract and negligence suits. He also has successfully defended clients accused of violating Federal & State Consumer Protection Acts, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Americans with Disabilities Act.

Mr. Berkowitz regularly authors articles and lectures about emerging and significant class action topics. Most recently Mr. Berkowitz has taken part of AM Best’s podcast discussing the future of class action. In 2018, he authored an article in the NAPBS Journal discussing “How to Protect Yourself From A Cyber Attack.” He also spoke on the topic at NAPBS’ Annual Conference. In 2016 and 2017, he co-authored two ethics articles for the Defense Research Institute (“DRI”): Defense Ethical Issues in Class Action Litigation (2016) and Navigating Ethical Issues in Class Actions: A Defense Perspective. He also served as faculty for DRI’s 2017 Class Action Conference where he gave the ethics presentation. He possesses substantial knowledge and practical experience concerning the ethics rules that are unique to class actions and applicable to both the plaintiff and defense bars.

Mr. Berkowitz co-authored Avoid Significant Exposure, and Attorneys’ Fees: Using Rule 68 Offers of Judgment to End Class Actions Early and Quickly, 11 No. 3 In-House Def. Q. 38 (2016). He also presented at the Perrin Class Action Conference in 2017 and lectured about recent Supreme Court decisions and how these decisions will affect class action litigation and plaintiffs and defendants moving forward.

Mr. Berkowitz’s clients include construction companies, auto dealerships, and national restaurant and retail chains in complex tort actions. He also defends attorneys, architects, accountants, and other professionals accused of malpractice. In addition, he has defended insurance companies in complex coverage disputes involving toxic tort and environmental cases, and has represented clients in disputes involving medical malpractice, contracts, defamation, employment law, and real property. Furthermore, he maintains a Higher Education Law practice and regularly represents accrediting agencies & educational institutions.

Partner, Carr Maloney PC

Federal Court Decertifies FCRA Class Action for Lack of Standing Under Spokeo

On October 18, 2019, a federal judge in the United States District Court for the Central District of California decertified a class of approximately 6.5 million Wal-Mart job applicants, ruling that the plaintiffs failed to satisfy Article III standing requirements under Spokeo v. Robins. The Supreme Court in Spokeo reiterated that a statutory violation by itself and without a concrete injury is insufficient to confer Article III standing. In Pitre v. Wal-Mart Stores, Inc., a class of plaintiffs alleged that Wal-Mart violated the Fair Credit Reporting Act by failing to provide job applicants with required and sufficient [...]

By |2019-10-22T11:02:43-04:00October 22nd, 2019|Practice Areas: General|Topics: , |

Junk Faxes – the Telephone Consumer Protection Act and the Battle of the “Unsolicited Advertisement”

On June 20, 2019, the Supreme Court issued its decision in PDR Network, LLC, et al. v. Carlton & Harris Chiropractic, Inc., Docket No. 17-1705. This case involves the receipt of an unsolicited fax and whether such a fax violates the Telephone Consumer Protection Act (“TCPA”). The Court declined to squarely answer the question, but instead, sent it back to theCourt of Appeals for additional review. Generally, under the Telephone Consumer Protection Act (“TCPA”) anyone can sue if they receive an unsolicited ad by fax. This is exactly what happened in PDR Network. Carlton & Harris Chiropractic [...]

By |2019-06-27T15:11:16-04:00June 27th, 2019|Practice Areas: Consumer Protection|

Students and Parents Respond to College Admission Scandal with a Class Action Lawsuit

On March 12, 2019, the United States Department of Justice charged 50 individuals, including celebrities and well-known professionals, with participating in an elaborate multi-million-dollar college recruitment scheme. Under the scheme, administrators and coaches at numerous prestigious educational institutions, as well as ACT and SAT administrators, were bribed in exchange for admitting children with lackluster credentials into such institutions. In light of these charges, current students have “piggybacked” on the government’s case and filed a civil class action complaint alleging punitive and compensatory damages of at least $5 million, which includes the recoupment of the plaintiffs’ admission [...]

By |2019-05-15T12:42:57-04:00March 26th, 2019|Practice Areas: General|Topics: |

SCOTUS Holds that Rule 23(f) Class Certification Appeal Deadline is not Subject to Equitable Tolling

Under Federal Rule of Civil Procedure Rule 23(f), a federal appeals court may hear an appeal from an order granting or denying class certification if the appeal is filed within 14 days after the trial court’s order is entered.  The Supreme Court took up the question as to whether the deadline could be extended under equitable tolling principles. On February 26, 2019, the United States Supreme Court held in Nutraceutical v. Lambert that equitable tolling does not apply to extend the 14-day deadline to appeal an order denying or granting class certification under Federal Rule 23(f). In [...]

By |2019-05-15T12:42:57-04:00March 1st, 2019|Practice Areas: General|Topics: , |

SCOUTUS To Review Whether A Third-Party Defendant Can Remove a Class Action to Federal Court

On September 27, 2018, the Supreme Court agreed to review whether, under the Class Action Fairness Act (CAFA), a third-party defendant can remove a class action from state to federal court. Home Depot USA, Inc., U.S. No. 17-1471. CAFA allows “any defendant” to remove actions from state to federal court if certain jurisdictional requirements are met. This case arose when Citibank N.A. brought a debt collection action against George Jackson in state court alleging he failed to pay for a water treatment system he bought using a Citibank credit card. Jackson filed a counterclaim against Citibank and third-party class [...]

By |2019-05-16T13:13:00-04:00November 8th, 2018|Practice Areas: General|Topics: |

SCOTUS Declines to Extend American Pipe Tolling Rule to Successive Class Actions

Recently on June 11, 2018, the Supreme Court, in China Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2018), unanimously held that the statute of limitations is not tolled on successive class actions when a putative class action is filed.  Previously in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the Supreme Court ruled that the claims of non-named plaintiffs were not barred by the statute of limitations if the class action of which they were a member failed.  The statute of limitations for the individual claims was tolled while the class action was [...]

By |2019-05-15T12:42:57-04:00July 16th, 2018|Practice Areas: General|Topics: , |

The Telephone Consumer Protection Act: Recent Developments & Best Practices to Protect Your Business

Introduction Receipt of unsolicited phone calls or text messages is not uncommon. These calls are often only moderately inconvenient for the recipient; however, if the unsolicited communication does not strictly follow the mandates of the Telephone Consumer Protection Act (“TCPA”), consequences for the caller can be catastrophic. The following is a brief overview of the TCPA, recent developments in the law, and best practices to protect your business and to ultimately avoid costly litigation. TCPA Background The TCPA was enacted in 1991, a time when residential landlines were standard and cellular telephones were an exception. Twenty-seven years [...]

By |2019-05-15T12:37:56-04:00May 1st, 2018|Practice Areas: Consumer Protection|

SCOTUS to Evaluate Fairness of Cy Pres and Class Settlement Awards

On April 30, 2018, the Supreme Court granted certiorari in Frank v. Gaos, No. 17-961 to determine whether a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that  settlements binding class members must be “fair, reasonable, and adequate.” Cy pres is French for “as near close as possible.”  The purpose of the doctrine in class action litigation is to allow unclaimed funds to be distributed to organizations that advance the interests of the litigation, instead of returning remaining funds to the defendant.  [...]

By |2019-05-15T12:42:57-04:00April 30th, 2018|Practice Areas: General|Topics: |

Prospective Employees Who Were Not Given a Separate Disclosure of a Pre-Employment Background Checks Have Standing to Bring Suits for Technical Violations of the FCRA

Despite the Supreme Court’s holding in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), as revised (May 24, 2016), a federal court recently allowed a class action lawsuit to proceed against Amazon, as a prospective employer, for a technical violation of the Fair Credit Reporting Act (“FCRA”) and without any “actual harm.” In Hargrett v. Amazon.com DEDC LLC, 235 F. Supp. 3d 1320 (M.D. Fla. 2017), job applicants filed a class action lawsuit against Amazon, alleging a statutory violation of § 1681b(b)(2)(A) of FCRA in connection with preemployment background checks. Section 1681b(b)(2)(A)(I)-(ii) requires that before conducting a [...]

By |2019-05-15T12:41:03-04:00February 15th, 2018|Practice Areas: Labor & Employment|Topics: , |