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Kenneth R. Berman, Nutter McClennen & Fish LLP Photo

Kenneth R. Berman

Co-Chair, Business Litigation Practice Group / Boston

Overview

Kenneth R. Berman is a partner in Nutter’s Litigation Department. He co-chairs the firm’s Business Litigation Practice Group and chairs the firm’s Pro Bono Committee. Ken is a seasoned litigator representing clients in complex business cases, intellectual property disputes, and real estate and land use litigation.

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Areas of Concentration

In the business litigation arena, Ken’s broad experience covers complex contract, fraud, and unfair trade practices disputes, internal disputes in companies and partnerships, fiduciary duty claims, insurance coverage disputes, litigation over product integrity issues, non-competition and non-solicitation disputes, litigation over the sale of goods and supply chain issues, and other business disputes. 

In the patent infringement, copyright, trademark, and trade secret arena, Ken has represented manufacturers, sellers, and inventors of technologies such as laser scanning devices that create medical images of coronary arteries, explosive detection equipment used in airport security, bone density measurement devices used in the detection of osteoporosis, port-catheter devices used in the intravenous transmission of chemotherapy, proprietary grass seed that produces low maintenance lawns, and plastic cards used to facilitate retail transactions.

In the real estate and land use area, Ken has represented property owners and developers in zoning and subdivision litigation, easement disputes, commercial lease and land purchase disputes, construction litigation, historic preservation litigation, and land title litigation over a wide spectrum of real estate including shopping centers, office towers, condominium and other large multi-family properties, residential and commercial subdivisions, institutional uses, recreational properties, and undeveloped land.

Litigation Achievements

Ken’s litigation achievements include:

  • obtaining an arbitration award, after trial, establishing claims to ownership of a medical device company
  • obtaining a jury verdict in favor of a technology company, holding a competitor and a supplier liable for breach of contract, tortious interference, and misappropriation of trade secrets; obtaining a judgment in the same case for declaratory and injunctive relief, double damages, and a multi-million dollar legal fee award under Massachusetts’ unfair trade practices statute
  • obtaining a judgment from the Delaware Court of Chancery, and a ruling from the Delaware Supreme Court affirming the judgment, defeating a claim by a former chief executive officer seeking advancement of legal fees to defend a suit for breach of fiduciary duties
  • obtaining a judgment, after trial, that preserved a structure under a historic preservation statute over the claims of a developer who sought to remove it
  • defeating at trial a multi-million dollar claim brought by a commercial developer for an alleged breach of an easement agreement
  • defeating at trial a multi-million dollar suit brought by the country’s fifth largest retailer seeking, among other things, to establish certain property rights; obtaining a judgment in a different trial and different court against the same retailer overturning certain regulatory approvals obtained by the retailer that were adverse to the interests of our client
  • defeating at trial a suit by a general partner to remove the managing general partners of a real estate limited partnership
  • obtaining a multi-million dollar judgment against one of the country’s largest banking institutions for breach of warranties in the sale of a large portfolio of mortgage loans
  • defeating at trial a developer’s claim seeking to compel the sale of a large tract of industrial and residentially-zoned land
  • obtaining a judgment defeating a spot zoning challenge to the validity of an ordinance that created a specially permitted category for certain institutional uses on large (hundred-acre-or-more) parcels
  • obtaining a judgment compelling the issuance of regulatory approvals needed for the construction of a private school
  • obtaining a court order for the owner of a golf course and country club eliminating an insurance company’s defenses to coverage
  • litigating and settling a multi-million dollar claim involving parties in four countries, based on allegations of breach of contract, product defects, misappropriation of intellectual property, corporate espionage, interference, and unfair trade practices

Ken’s expertise also includes advising clients and litigating disputes on transactions involving the sale of goods, both domestically under the Uniform Commercial Code and internationally under the United Nations Convention on Contracts for the International Sale of Goods (CISG). Ken attended the International Seminar on the Application and Interpretation of the CISG in Member States, an academic conference sponsored by the United Nations and other prominent organizations held at Wuhan University School of Law in Wuhan, China, at which the world’s leading scholars on the CISG from over a dozen countries and four continents spoke and presented papers on a wide range of complex issues between buyers and sellers in international sales transactions.

Related Experience

Ken’s clients benefit from his recognized thought leadership in the area of witness preparation. His pathbreaking article in Litigation, entitled “Reinventing Witness Preparation,” exposed serious flaws, fallacies, and hazards in how litigators historically prepare witnesses for depositions and cross examination. Ken’s article offered a new approach that has received wide acclaim, and the American Bar Association is planning to release his forthcoming book in February 2018, which treats the subject in depth. Ken is a sought-after speaker on the subject, having spoken on his cutting-edge witness preparation methods to bar groups and organizations around the country.

Ken’s work in the witness preparation area complements his frequent writing and speaking for local and national audiences on topics of current legal interest, high profile litigation, and advanced litigation techniques. After the Supreme Court approved game-changing amendments to the Federal Rules of Civil Procedure in December 2015, Ken wrote the signature analysis of the rule changes in Litigation in his article, “Reinventing Discovery Under the New Federal Rules.” Thereafter, Ken spoke on the subject with federal judges in a national webinar, at the Maine Federal Judicial Conference, and in the Boston presentation of the ABA Section of Litigation Federal Rules Roadshow.

The following year, Ken co-chaired the ABA Section of Litigation Precision Advocacy Roadshow, in which Ken worked with the director of the Federal Judicial Center and the chair of the Federal Advisory Committee on Civil Rules to present a national program in a dozen cities featuring panels of federal judges and leading litigators to educate the bar on ways of making motion practice more efficient and effective. 

Ken served on the board of editors of the Boston Bar Journal and as a legal commentator for WBZ-TV in Boston. Ken’s numerous articles have appeared in publications such as The Boston Globe, The National Law Journal, Litigation (the Journal of the Section of Litigation of the American Bar Association), Practical Litigator, the Boston Business Journal, the Boston Bar Journal, and Mass High Tech. He is also a contributing author of The Litigation Manual Depositions, published by the American Bar Association.

Annually since 2004 when the distinction was first conferred, Ken has been selected for the Massachusetts Super Lawyers list, in which no more than five percent of lawyers in the state were selected. Ken has also been recognized in Corporate Counsel Super Lawyers (2009, 2010), Super Lawyers Business Edition (2011, 2013-2015), and Chambers USA as a leading litigation attorney (2007-2012). Ken is also listed in Best Lawyers in America for Commercial Litigation.

For his pro bono work in protecting the privacy and first amendment rights of adult students with reading and writing disabilities and of their teachers, Ken received a special recognition award from the Literacy Volunteers of Massachusetts.

Ken currently serves as a member of the Council of the American Bar Association’s Section of Litigation. He is a member and former co-chair of the ABA Section of Litigation Corporate Counsel Committee and Business Torts Committee, and a member of the Section’s Intellectual Property Committee, Commercial and Business Litigation Committee, and Trial Practice Committee. He is a former member of the Boston Bar Association's Council and Executive Committee, and a member and former chair of the Boston Bar's Litigation Section. Ken is a former member and chair of the Joint Bar Committee on Judicial Nominations, which reviews, evaluates, and makes recommendations on the qualifications of individuals under consideration for judicial appointments in Massachusetts. Ken has served as an advisor in the Harvard Trial Advocacy Program and the Harvard Legal Aid Clinic.

Ken is a director and vice president of the Massachusetts Law Reform Institute, Inc., the Massachusetts statewide poverty law center. His other civic involvement includes having served as an officer and board member of the Association of Yale Alumni, and as a trustee and officer of the Meadowbrook School of Weston. During law school, Ken was an editor of the Connecticut Law Review.

Experience

Experience

  • Won jury verdict in major business torts case

    After a client’s competitor acquired a client’s exclusive supplier and threatened to terminate the client’s supply of a key component, we sued the competitor and supplier. In a month long trial, we obtained a jury verdict holding the competitor and a supplier liable for breach of contract, tortious interference, and misappropriation of trade secrets, ultimately leading to a favorable judgment for declaratory and injunctive relief, double damages, and a multi-million dollar legal fee award under Massachusetts’ unfair trade practices statute.

  • Obtained eight figure settlement in major business torts litigation over supply chain interference and corporate espionage

    On behalf of our client, we sued a large importer of our client’s products, alleging that the importer wrongfully refused to pay for goods purchased, engaged in corporate espionage, and interfered with our client’s relationships with key employees and companies in our client’s supply chain. The importer countersued, claiming that our client’s products were defective.  The litigation was based in the United States, but involved parties in four countries and two continents, raising complex issues under domestic and foreign law, as well as under a United Nations commercial treaty.  In a mediated settlement, we resolved the case on advantageous terms, including obtaining an eight figure settlement from the defendant.

  • Obtained favorable settlement on patent infringement claims

    Our client was sued for allegedly infringing a patent pertaining to the method by which our client’s product was packaged. Though the client denied any infringement, the client was able to settle the matter on favorable terms, including an advantageous license arrangement.

  • Won judgments in complex real estate litigation after related jury-waived trials in two courts

    One of the country’s largest retailers sued our client for millions of dollars in alleged damages and for an injunction based on a claimed breach of an easement agreement. After a jury-waived trial, we obtained a judgment dismissing the case. The court credited our client’s interpretation of the agreement and found there was no breach. In a related case, our client sued the retailer and a local permitting authority in a different court to overturn a decision that granted the retailer a permit to develop its property in a manner that would have been detrimental to our client’s adjoining property. After a jury waived trial, we obtained a judgment overturning the permit on the ground that the permitting authority abused its discretion. The combination of these two decisions later enabled the client to make an advantageous sale of its property to a third party.

News & Insights

Honors

Honors

  • Chambers and Partners, Leading U.S. Litigation Attorneys, 2007-2012
  • Super Lawyers, Corporate Counsel Edition, 2009 & 2010
  • Massachusetts Super Lawyers, 2004-2016
  • Super Lawyers Business Edition, 2011 & 2013-2015
  • The Best Lawyers in America, 2016-2018

Education & Admissions

Education

University of Connecticut School of Law, J.D., high honors

Yale University, B.A.

Admissions

  • U.S. Supreme Court
  • U.S. Court of Appeals for the First, Fourth, and Federal Circuits
  • U.S. District Court for the District of Massachusetts
  • U.S. District Court for the Eastern District of Michigan
  • Massachusetts, All State Courts

Industry Expertise

Ken frequently writes and lectures for local and national audiences on topics of current legal interest, high profile litigation, and advanced litigation techniques. He served on the Board of Editors of the Boston Bar Journal and as a legal commentator for WBZ-TV in Boston.

Noteworthy

Chambers and Partners, Leading U.S. Litigation Attorneys, 2007-2012

The Best Lawyers in America, 2016-2018

Super Lawyers, Corporate Counsel Edition, 2009 & 2010

Massachusetts Super Lawyers, 2004-2017

Super Lawyers Business Edition, 2011 & 2013-2015

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