June 24, 2024
Brown, who took on the role of managing partner earlier this year succeeding Steven Toll in the post, said the firm is full of “mission-driven superachievers who believe in their case.”
Meet Benjamin Brown, who this year became the managing partner at Cohen Milstein Sellers & Toll—a role previously occupied by name partner Steven Toll. Brown, who is based in Washington, D.C. also co-chairs the firm’s antitrust practice. He shared Litigator of the Week honors earlier this year with his fellow co-lead counsel in an antitrust case that yielded a $418 million settlement with the National Association of Realtors. As part of the settlement, NAR agreed to implement changes reshaping how residential real estate commissions are handled in the U.S.
Lit Daily: Tell us a little about yourself—perhaps even a thing or two your partners would be surprised to learn about you.
Ben Brown: If you were to look at my life from 50,000 feet, you would think I was always destined to be a lawyer. My grandfather was a lawyer, my father was a judge, my brother is a lawyer, and my wife is a lawyer. But I was really torn between becoming a lawyer or moving to L.A. and becoming a screenwriter and actor. I decided not to apply to any “safety” schools for law. I was either going to go to the law school of my dreams or I was going to follow my other passion. I sometimes wonder how my life would have unfolded on the other path.
After clerking, I worked on the defense side for a few years, but the fit never felt right for me. I moved to DOJ and confirmed that I liked being on the left side of the “v” but I didn’t like the bureaucracy and having to defer to political appointees on the critical decisions. Finding Cohen Milstein validated my choice of a career in litigation. I get to litigate cases I care about and work alongside people I care about. I am very fortunate.
You took on the role of managing partner at the firm after name partner Steven Toll had long occupied that post. What tips did he have for you as you took on the job?
Steve isn’t the sort of guy who is going to play guru and closely guide the hand of a successor, especially since he still sits down the hall with an open door. But I learned a lot from watching him for years as a member of the firm’s executive committee. One lesson I took away from watching him was to trust my partners as litigators but offer help on the business and management side of the equation. Another lesson was to share credit and nudge others into the limelight. There are too many lawyers willing to push others out of the way to build their own reputations. One of the things that makes Cohen Milstein special is that we do not have that culture or reward that behavior. It makes the firm a genuinely collegial place to practice and is one reason we have very low turnover relative to most firms.
How have you balanced the demands of your own antitrust practice with your management duties?
To be honest, this is a work in progress. The short answer, though, is more delegation combined with longer hours. I have brought other talented partners into each of my cases to make sure that every case has multiple set of experienced eyes on the road and experienced hands on the wheel. That said, I’m not relegating myself to the back seat. I’ve continued to argue in court and take depositions. My plan is not to transition away from the front line—only to bring in reinforcements. On the firm management side, we have a terrific Executive Director of the firm in James Gehrke who keeps a lot of issues off my desk and without whom my plan to keep balancing both jobs would be impossible.
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What do you see as hallmarks of Cohen Milstein litigators? What makes you different?
Unlike most firms, Cohen Milstein is mission-driven. We embrace the role of the private attorney general and work to hold corporations accountable for misdeeds and overreach. It follows that attorneys attracted to Cohen Milstein are those who want to practice at the intersection of public interest and private enforcement. This career path really appeals to much of the current generation of law school graduates, which has afforded the firm a privileged position to hire attorneys with truly elite credentials and experience. Then, because our firm is highly specialized, those exceedingly well-credentialed attorneys gain deep experience in complex plaintiff-side litigation within their substantive area. That experience then informs our careful case selection. Thus, our firm is really a defendant’s worst nightmare—a deep bench of mission-driven superachievers who believe in their case and have become highly specialized to litigate precisely the type of case being litigated.
That formula leads to more successful outcomes in our litigations, which leads to an even stronger national reputation. This has allowed us to organically grow into one of the largest and most diversified plaintiff firms in the country without relying upon litigation funding. Having a national presence and industry-leading practice groups in 10 distinct areas affords us several competitive advantages.
Take, for example, our antitrust work addressing wage suppression. Our antitrust attorneys can call on our colleagues in our employment practice to consult on any thorny issues that implicate overlapping expertise. Our various antitrust wage suppression cases have resulted in over $700 million in settlements over the past two years. We can also litigate cutting-edge market manipulation cases. In our stock lending litigation, we leveraged the talent in both our antitrust and securities litigation practices. Settlements in that case total over $580 million so far. Another good example is the environmental tort work we’re handling on behalf of the residents of Flint, Michigan. This class action involving lead contamination in the city’s drinking water, resulting in more than $659.25 million in settlements thus far, was originally brought as a civil rights case. In each case, the diversity of our expertise has helped us achieve those monumental results and benefitted our clients tremendously.
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What were two or three of the firm’s biggest wins in the past year, and can you cite tactics that exemplify Cohen Milstein’s approach to success?
It may be my own bias as one of the co-leads, but I’ll first discuss Moehrl v. National Association of Realtors (N.D. Ill.). To reference my earlier comment, my colleague Robby Braun is our firm’s other steady hand on wheel in this case.
We are representing home sellers across the nation as co-lead class counsel in this case and three other, parallel class actions addressing an alleged price-fixing scheme in the real estate industry. Our clients, home sellers who listed their homes on multiple listing services (MLSs), claim that National Association of Realtors (NAR) and dozens of the nation’s largest real estate broker franchisors conspired to require home sellers to pay the fees for brokers representing the buyers of their homes, and to pay those fees at an inflated amount.
The case centers around NAR’s mandatory rule requiring brokers to make a blanket, non-negotiable offer of buyer broker compensation, called the “Buyer Broker Commission Rule,” when listing a property on an MLS. Our co-counsel successfully tried one of the parallel cases to a verdict of $1.8 billion pre-trebling.
Since October 2023, we have helped home sellers reach over $950 million in settlements, including a $418 million settlement against NAR this past March, along with sweeping injunctive relief that will significantly impact the real estate industry going forward. Additional settlement talks are ongoing.
This case exemplifies how our firm brings together the right legal talent to build and win cases. We were initially approached about this case by a Minnesota attorney named Doug Miller, who wasn’t an antitrust attorney or a class action litigator. We had to take his raw material and refine it into a winning theory and complaint. Then we approached Susman Godfrey and Hagens Berman, two of our regular partner firms, to build the right team to change an industry. Later, we all joined forces with a team of attorneys out of Missouri, including Mike Ketchmark who was the lead trial attorney at the Kansas City trial. This result was only made possible by bringing the right people together at the right time. Cohen Milstein’s size and stature in the plaintiff bar is reflected in our deep relationships with lawyers and firms across the country that allow us to identify, develop and win the big cases.
The second case would be In re Wells Fargo & Company Securities Litigation (S.D.N.Y.), where we helped our public pension fund clients achieve a $1 billion settlement in a massive securities fraud class action brought on behalf of investors nationwide. My colleague Laura Posner in our New York office helmed this one from start to finish, and Steve Toll helped lead the settlement negotiations.
The $1 billion settlement was not only the largest of its kind in 2023, the sixth largest in the last decade, the ninth largest ever in the Second Circuit, and the 17th largest ever, it is also the largest securities class action settlement—ever—without a restatement or related actions by the SEC or DOJ.
The lack of restatement is important because it makes the value of the recovery even more significant. In addition, the lack of preceding and parallel government enforcement actions, often the hallmark of a major private-sector securities class action, speaks to the risk our securities team took in pursuing the litigation and the exhaustive research and damages analyses the team undertook.
A unique hurdle the team faced was COVID-19. Wells Fargo argued that the stock drop, which occurred during the week the country started to shut down because of COVID-19, was caused by pandemic-related market turbulence, not the revelation of the bank’s fraud or misstatements about its (not) complying with federal consent orders. The court declined to dismiss the case on that ground. Less than three months after plaintiffs filed for class certification, the bank agreed to participate in settlement talks.
This case exemplified how our firm takes on smart risk. We do not wait for government action. We do thorough pre-filing investigations of our cases and we enter our litigations confident in our allegations and knowing we will not be out-lawyered.
The final case I’ll mention is John Doe I, et al, v. ExxonMobil Corporation (D.D.C.). After 22 years of litigation, my colleague Agnieszka Fryszman, and her small but dedicated team succeeded in holding Exxon Mobil accountable for human rights atrocities committed by its security contractors in Indonesia. While the settlement terms are confidential, I will tell you that litigation helped deliver justice to the 11 Jane and John Does who brought the case in 2001. The litigation achievement is tremendous and will be studied in law schools. It was part of a first wave of cases filed under the Alien Tort Statute and went up to the D.C. Circuit Court of Appeals twice, where we won both times. The claims eventually proceeded in U.S. federal court under Indonesian law, and in May 2023, the case settled days before jury trial was set to begin. This case quite literally pioneered the use of foreign tort law against multinational corporations and has provided a roadmap for litigators ever since.
This case exemplifies how relentless our firm is. If a defendant wants to go scorched earth, we will go scorched earth. Our firm may not have the headcount of the country’s largest defense firms, but we put big law resources and a unified partnership behind every case we file. We cannot and will not wave a white flag as a result of being outspent because that would mark the end of our success.