University of Maryland, University College, B.S., 2001
Kappa Beta Pi Prize
Clerkships
Law Clerk, Judge A. Raymond Randolph, U.S. Court of Appeals, District of Columbia Circuit, 20052006
Admitted
2005, Maryland
2007, District of Columbia
2009, Supreme Court of the United States
Daniel G. Bird litigates complex commercial trials and appeals for plaintiffs and defendants nationwide. He represents individual and corporate clients in a wide range of civil matters, focusing on antitrust, business torts, contract disputes, fraud, conspiracy, breach of fiduciary duty, defamation, and professional liability. He has successfully represented clients in high-stakes and high-profile disputes including elaborate tax frauds, healthcare antitrust violations, NASCAR sponsorship, and counterfeit wine.
Dan serves as trial and appellate counsel, has argued before numerous state and federal courts, and has achieved successful results through motions to dismiss, summary judgment, jury verdict, and appeal. He has experience in all aspects of litigation, with significant experience litigating complex issues of causation, damages, and attorneys’ fees. In addition, he advises clients on a variety of issues, including jurisdiction, the attorney-client privilege, choice of law, statute of limitations, and questions of trial and appellate strategy.
Dan is known for leading the trial team in UFCW & Employers Benefit Trust v. Sutter Health, No. CGC 14-538451 (Cal. Super. Ct.), an antitrust class action against a dominant hospital system in Northern California. On the eve of Dan’s opening statement, the case settled for $575 million and comprehensive injunctive relief.
Dan has an active pro bono practice and has repeatedly been named to the Capital Pro Bono Honor Roll. He frequently works with the Legal Aid Society to represent vulnerable individuals facing challenging legal problems. He joined the firm in 2006 after clerking for the Honorable A. Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit. He earned his J.D. from the Yale Law School, where he was a Coker Fellow in Constitutional Law and served as Senior Editor of the Yale Law Journal.
Representing multiple leading news publications against Google LLC and Alphabet Inc. in multi-district litigation alleging that Google monopolizes the online display advertising market. In re Google Digital Advertising Antitrust Litigation, No. 21-MD-3010 (PKC) (S.D.N.Y.).
Federal Trade Commission v. Meta Platforms, Inc., Mark Zuckerberg, and Within Unlimited, Inc., No. 3:22-cv-04325 (N.D. Cal. 2023).Defeated a request by the U.S. Federal Trade Commission to preliminarily enjoin Meta’s acquisition of Within Unlimited, Inc.After the district court ruled in favor of Meta, the FTC abandoned its parallel administrative complaint in the administrative home court.
Achieved complete appellate victory affirming jury verdict and awarding costs in cross-appeal for major health plan, in a case concerning the “reasonable and customary value” of non-contracted hospital emergency room services. Long Beach Memorial Medical Center v. Kaiser Foundation Health Plan, Inc., 71 Cal. App. 5th 323 (2021).
Successfully represented a certified class of employers, unions, and government entities alleging that the Sutter Health hospital system leveraged its market power to engage in anticompetitive conduct, insulate itself from competition, and charge inflated prices.Sutter agreed to pay $575 million and to comprehensive injunctive relief, including changing its practices under the supervision of a court-appointed monitor. UFCW & Employers Benefit Trust v. Sutter Health, No. CGC 14-538451 (Cal. Super. Ct.).
Successfully represented bankruptcy trustee on appeal in obtaining affirmance of a $213 million jury verdict against The Renco Group and Ira Rennert for fraudulent conveyance and breach of fiduciary duty. In re Magnesium Corporation of America, 682 F. App’x 24 (2d Cir. 2017).
Successfully represented a leading audio company at trial after defeating motion to dismiss and establishing personal jurisdiction over noteholders of the company, in a dispute involving notices of default issued in Texas. iHeartCommunications, Inc. v. Benefit Street Partners, LLC, No. 2016-CI-04006 (Tex. Dist. Ct., Bexar Cnty. May 6, 2016).
Obtained dismissal with prejudice of indemnification claims by former executives against Texas-based hospice providers. The Delaware Court of Chancery held that the former executives entered a valid and binding contract in which they gave up any indemnification rights. Curo Texas Hospice, LLC v. Kumar, C.A. No. 11665-VCL (Del. Ch. May 2, 2016).
Served as lead appellate counsel for a small drilling company alleging breach of contract against a major energy company. On appeal, successfully vacated the trial court’s order granting judgment as a matter of law to the defendant and obtained a new trial, in a case involving mutual assent, mistake, and fraud. Knox Energy, LLC v. Gasco Drilling, Inc., 2016 WL 385948 (4th Cir. 2016).
Served as trial counsel in a dispute between coal companies involving claims of fraud and tortious interference. Briefed, argued, and won summary judgment on individual plaintiff’s claims for millions of dollars in lost income and other damages, which the court held were derivative of injuries allegedly sustained by his company. Caperton v. A.T. Massey Coal Co., 2014 WL 3579828 (Va. Cir. Ct. Apr. 15, 2014).
In post-trial representation of a defendant accused of consigning counterfeit wine for auction, successfully reduced compensatory and punitive damages from $12.4 million to less than $1 million, defeated a request for a permanent injunction, and obtained the complete denial of a claim for $8 million in attorneys’ fees. Koch v. Greenberg, 14 F. Supp. 3d 247 (S.D.N.Y. 2014).
Represented various former public company executives in arbitrating tort claims against professional services firms for the fraudulent marketing and sale of tax-avoidance strategies. All claims were resolved successfully, recovering significant damages for each plaintiff. Confidential AAA Arbitrations (New York, NY; 2010, 2013).
Successfully represented a leading litigation finance provider in establishing the legal principle that the attorney-client privilege and work-product doctrine protect a litigant’s communications with litigation funders. Devon IT Corp. v. IBM Corp., 2012 WL 4748160 (E.D. Pa. Sept. 27, 2012).
Represented private equity firm against a limited partner that alleged fraud and breach of contract and sought reformation of partnership agreement based on an alleged mistake. The Delaware Chancery Court granted favorable summary judgment ruling on claims of fraud and mistake. Great-West Investors, LP v. Thomas H. Lee Partners, L.P., 2012 WL 19469 (Del. Ch. Jan. 4, 2012).
Successfully represented leading online marketing company in the district court and on appeal against claims of infringing a patent on e-mail marketing. The Federal Circuit affirmed the grant of summary judgment in a widely cited decision confirming the efficacy of “logic, judgment, and common sense” to invalidate a patent on the ground of obviousness. Perfect Web Technologies, Inc. v. InfoUSA, Inc., 587 F.3d 1324 (Fed. Cir. 2009).
Successfully represented major telecommunications company in an appeal establishing that a Kentucky statute violated the First Amendment by prohibiting providers from disclosing on consumer bills that the state had imposed a new tax on providers’ gross revenues. BellSouth Telecomms., Inc. v. Farris, 542 F.3d 499 (6th Cir. 2008).
Panelist, Texas Association of Health Plans Conference, Health Care Prices and Consolidation Are Out of Control:Where Do We Go from Here? (Nov. 8, 2022)
Presenter, Maryland State Bar Association Legal Summit & Annual Meeting, Alliance Litigation:Effective Collaboration Among Private Plaintiffs and Government Enforcers (June 11, 2021)
Panelist, Healthcare Revolution Conference, Transforming the Misaligned Incentives that Drive Waste, Overuse & Misuse in Health Care (May 17, 2021)
Panelist, Midwest Business Group on Health, Hospitals Driving Health Care Cost Increases:Misaligned Incentives, Lawsuits, and Remedies (May 5, 2021)
Presenter, National Academy for State Health Policy, Consolidation, Dysfunctional Markets, and the High Cost of Healthcare (Mar. 12, 2021)
Panelist, Houston Business Coalition on Health, Houston Hospital Transparency – Price, Quality & Employer Cost Mark-Up (Mar. 3, 2021)
Presenter, Employers’ Forum of Indiana, Anticompetitive Managed Care Contracting Practices (Aug. 19, 2020)
April 16, 2024— In a case highlighted by Law360’s Petition Watch, Kellogg Hansen client Living Essentials has asked the Supreme Court to clarify what a private plaintiff must prove to win a “secondary line” price discrimination case under the Robinson-Patman Act. At trial, Living Essentials persuaded both a jury and the court to reject claims that it had violated the Act by offering Costco lower prices to buy its popular energy shots, 5-hour ENERGY®, than it had offered to certain wholesalers. The district court explained that the wholesalers could not show they competed with Costco for the same customers, as required by Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006). But a fractured panel of the Ninth Circuit, breaking from the decisions of other courts of appeals, held Volvo inapplicable. The petition urges the Court to grant review because the decision “invites litigation that will punish the price competition that antitrust law aims to encourage.”
Living Essentials, LLC and its parent company, Innovation Ventures, LLC, are represented by Kellogg Hansen attorneys David C. Frederick, Daniel G. Bird, Collin R. White, and Kyle C. Bailey.
Read more in this report by Law360.
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May 1, 2023— Twenty-seven Kellogg Hansen attorneys qualified for recognition on the 2022 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel. Nineteen Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service. The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011. The complete list of 2022 honorees can be found here.
Kellogg Hansen 2022 Capital Pro Bono Honor Roll
Scott K. Attaway*
Daniel G. Bird*
L. Vivian Dong
Daniel V. Dorris
Matthew N. Drecun
Ryan M. Folio
David C. Frederick*
D. Chanslor Gallenstein*
Dustin G. Graber
Kimberly V. Hamlett*
Minsuk Han*
Ashle Holman*
Geoffrey M. Klineberg*
Jonathan I. Liebman
Eric J. Maier*
Samuel A. Martin*
Ariela M. Migdal
Bradley E. Oppenheimer*
Gregory G. Rapawy*
Catherine M. Redlingshafer
Derek C. Reinbold*
Caroline A. Schechinger*
Daniel S. Severson*
Andrew C. Shen*
Julius P. Taranto*
Alex P. Treiger*
Matthew J. Wilkins*
* denotes High Honor Roll
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May 1, 2021— Nineteen Kellogg Hansen attorneys qualified for recognition on the 2021 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel. Twelve Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service. The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011. The complete list of 2022 honorees can be found here.
Kellogg Hansen 2021 Capital Pro Bono Honor Roll
Scott K. Attaway
Alejandra Ávila*
Daniel G. Bird*
Katherine C. Cooper*
Matthew N. Drecun*
Linda A. Elliott*
Kimberly V. Hamlett*
Minsuk Han*
Vetan Kapoor
Geoffrey M. Klineberg*
Ariela M. Migdal
Aaseesh P. Polavarapu*
Catherine M. Redlingshafer
Derek C. Reinbold
Christopher M. Sarma
Thomas G. Schultz*
Julius P. Taranto*
Jayme L. Weber
Matthew J. Wilkins*
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Settlement agreement includes injunctive relief that will ensure Sutter competes on price and quality.
San Francisco, Calif. | August 27, 2021— Today the Superior Court of California County of San Francisco approved the settlement resolving the antitrust class action that alleged that the Sutter Health hospital system leveraged its market power to engage in anticompetitive conduct, insulate itself from competition, and charge inflated prices.
The case settled in 2019 when Kellogg Hansen partner Daniel Bird was minutes from giving the opening statement. It has been heralded as a landmark case in the effort to take on inflated healthcare prices. In reporting on the settlement, The New York Times described the lawsuit as \"a fresh legal attack on health systems accused of using their size to thwart competition\" that has been \"highly anticipated by both hospitals and health insurers.\" (The New York Times, \"Sutter Health to Pay $575 Million to Settle Antitrust Lawsuit,\" December 20, 2019.)
“This settlement shows employers and unions have the ability to level the playing field and stop the anticompetitive practices of dominant hospital systems that are driving up the cost of healthcare and lowering wages for millions of employees across the country,” Mr. Bird said following final approval of the settlement. “We are incredibly proud of the results and thankful to the Court for its role in ensuring a fair and just process in this monumental case.”
Kellogg Hansen was joined in the case by counsel from the California Attorney General’s Office, as well as co-counsel Pillsbury & Coleman, LLP; Farella Braun + Martel LLP; Cohen Milstein Sellers & Toll PLLC; and McCracken, Stemerman & Holsberry, LLP.
Background on the Settlement
The settlement agreement requires Sutter to pay $575 million to class members and to implement specific changes to its practices for at least ten years under the supervision of a court-appointed monitor.
The settlement agreement has eight key features regarding Sutter’s conduct:
Prevents Sutter from unreasonably restricting the ability of insurers to create narrow or tiered networks or otherwise to incentivize patients to choose non-Sutter providers.
Prevents Sutter from using “must have” providers to require insurers to include unwanted Sutter providers in their networks, and from conditioning the participation of “must have” providers “on the tier in which the Insurer places them.”
Limits Sutter’s out-of-network rates for out-of-network trauma care, for out-of-network emergency-room care, for charges for Sutter physicians providing emergency-room non-trauma care, and for certain other charges.
Allows insurers to provide self-insured payers with pricing terms and claims data, and allows enrollees to have access to pricing, quality, and/or cost information concerning Sutter providers.
Preserves Sutter’s ability to engage in discounting and generally allows Sutter to offer lower prices for bundles of providers as long as a standalone price is also offered separately for those providers subject to certain exceptions. At the same time, it also provides procedural safeguards to ensure that Sutter’s use of bundled pricing does not prevent health plans from excluding certain Sutter providers from their networks.
Limits Sutter’s conduct with respect to insurers’ ability to offer Centers of Excellence. Those limitations preserve health plans’ ability to exclude Sutter providers from Centers of Excellence programs and to remove Sutter providers that fail to meet pre-disclosed criteria.
Prevents Sutter from enforcing “provisions in prior, existing, or future contracts with Insurers that violate or are inconsistent with the terms of [the settlement] or promulgate in future contracts terms that violate or are inconsistent with the terms of [the settlement].”
Installs a court-appointed monitor, who will ensure compliance with the settlement.
Case Caption: UFCW & Employers Benefit Trust v. Sutter Health, No. CGC 14-538451 (Cal. Super. Ct.).
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May 1, 2021— Kellogg Hansen attorneys qualified for recognition on the 2020 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel. Nine Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service. The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011. The complete list of 2022 honorees can be found here.
Kellogg Hansen 2020 Capital Pro Bono Honor Roll
Scott Attaway
Daniel Bird
Christine Bonomo*
Matthew Drecun*
Linda Elliott*
Kenneth Fetterman
Daniel Guarnera*
Michael Guzman
Julia Haines
Jacob Hartman*
Michael Kellogg
Gerald Kerska
Geoffrey Klineberg*
Grace Knofczynski
Sean Nadel*
Bradley Oppenheimer*
Ana Paul
Eliana Pfeffer
Gregory Rapawy
Thomas Samuels*
Christopher Sarma
Thomas Schultz*
Julius Taranto
Jayme Weber
Joseph Wenner*
*denotes High Honor roll
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$575 million settlement agreement includes injunctive relief that will ensure Sutter competes on price and quality.
San Francisco, Calif. | December 20, 2019— Kellogg Hansen is seeking preliminary approval of a landmark class-action settlement reached with Sutter Health, the largest health care system in Northern California. The $575 million settlement resolves claims brought by UFCW & Employers Benefit Trust (UEBT) on behalf of a certified class of direct purchasers of hospital services, as well as the Attorney General of California. The agreement also provides injunctive relief, under the supervision of a court-appointed monitor, designed to limit Sutter’s charges for out-of-network services and to prevent Sutter from leveraging its market power in contract negotiations regarding provider networks.
In a statement about the settlement, UEBT Board Chair Jacques Loveall said: “From the outset, our goal has been to not only achieve justice for the members of the class, but to also put an end to the anticompetitive behavior that has allowed Sutter to charge inflated prices. Today, we are asking the Court to approve a settlement that delivers on both of these goals.” UEBT’s full statement is available here.
The parties reached the settlement on the eve of trial. Daniel Bird led the Kellogg Hansen trial team, which included Kenneth Fetterman, Linda Elliott, Jacob Hartman, and Albert Pak. Kellogg Hansen is joined by co-counsel Pillsbury & Coleman, LLP; Farella Braun + Martel LLP; Cohen Milstein Sellers & Toll PLLC; and McCracken, Stemerman & Holsberry, LLP.
Case caption: UFCW & Employers Benefit Trust, on behalf of itself and all others similarly situated, v. Sutter Health, et al., Case No. CGC-14-538451, pending in the San Francisco Superior Court.
For media inquiries, please contact: UEBTMedia@msh.law
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