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2000 Powell Street, Suite 1605, Emeryville, California 94608-1861

Barry Himmelstein

Attorney

510-450-0782

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ATTORNEY PROFILE

AWARDS & RECOGNITION

  • Northern California Super Lawyer, 2009 – 2018
  • America’s Top 100 High Stakes Litigators, Northern California, 2018
  • Community Service Award, Jack Berman Advocacy Center, American Jewish Congress, 1996

EDUCATION

  • Law School:  University of California, Hastings College of Law, magna cum laude, 1991
  • Undergrad:  University of Michigan at Ann Arbor, 1982

PRIOR EMPLOYMENT

  • Partner, Lieff Cabraser Heimann & Bernstein LLP, San Francisco (1997-2011)
  • Associate, Morrison & Foerster LLP, San Francisco (1992-96)
  • Law Clerk to Hon. Charles A. Legge, Northern District of California (1991-92)

BAR ADMISSIONS

  • California
  • U.S. Supreme Court
  • U.S. Courts of Appeals for the Second, Third, Seventh, Ninth and Eleventh Circuits
  • U.S. District Courts for the Northern, Central, and Eastern Districts of California, District of Colorado, and Eastern District of Arkansas

LANDMARK SUCCESSES

Wells Fargo Overdraft Litigation. In 2010, I was part of the San Francisco trial team that obtained a $203 million judgment against Wells Fargo Bank for manipulating the order of processing debit card transactions to increase the number of overdraft fees imposed on its California accountholders.  The first and only such case to go to trial, it prompted a wave of nationwide settlements.

Neurontin Marketing and Sales Practices Litigation. In 2010, I was part of the Boston trial team that obtained a $142 million verdict for Kaiser Foundation, a non-profit health care provider, against Pfizer for deceptive marketing of Neurontin (an anti-epileptic) to physicians for unapproved uses for which it was not effective. The landmark judgment was the first time a pharmaceutical company had been held liable under the RICO statute.

Synthroid Marketing Litigation. I was co-lead counsel in a class action against the manufacturer of the popular thyroid medication, who suppressed the publication of a study showing that a less expensive generic could be safely substituted. The $88 million settlement was distributed to consumers in 2003.

California Electricity and Natural Gas Antitrust Litigation. From 2001 – 2009, I was lead or co-lead counsel in the multi-faceted antitrust litigation arising out of the California energy crisis.

In the Natural Gas Antitrust Cases, I obtained a $1.25 billion settlement with El Paso Natural Gas Co. for residential and business consumers of natural gas, in a case alleging the manipulation of pipeline capacity to drive up wholesale prices at the California border. It remains one of the largest consumer class action settlements on record.

In the Price Indexing Cases, I obtained an additional $164 million in settlements for natural gas consumers from eight companies accused of engaging in “wash trades” and false reporting of trades to manipulate wholesale prices at the California border.

In the Wholesale Electricity Antitrust Cases, as co-lead counsel for electricity consumers, I recovered over $1 billion from The Williams Companies, Duke Energy, and Reliant Energy in settlement of claims that they conspired to manipulate California’s wholesale electricity markets.

Property I.D. Kickback Litigation. In Berger v. Property I.D., I represented California home sellers in a case involving kickbacks paid by the largest provider of Natural Hazard Disclosure reports to Coldwell-Banker, Prudential California Realty, and RE/MAX in violation of the “sham” affiliated business relationship provisions of the Real Estate Settlement Procedures Act (RESPA). A 2008 settlement provided class members with full refunds of the amounts paid for their reports, up to a total of $35 million. The litigation prompted action by HUD, which signed on to the landmark settlement.

National Security Agency Telecommunications Records Litigation. In this “mother of all privacy cases,” I was appointed to represent MCI subscribers in litigation against the major telecommunications carriers for turning their customers’ call records over to the National Security Agency in violation of federal privacy laws. The case was dismissed in 2009, after Congress granted the carriers immunity, as a result of a heavy lobbying effort. (You can’t win them all.)

American Family Publishers Business Practices Litigation. I was co-lead counsel for consumers misled into purchasing magazine subscriptions in the hope of winning the annual American Family Publishers sweepstakes. Even though the company filed for bankruptcy, the $33 million settlement provided class members with over 90% of their claimed losses, with settlement checks averaging over $500.

Lucent Technologies “Y2K” Litigation. I represented small businesses in a successful “Y2K” class action against Lucent Technologies for failing to disclose that telephone systems it sold as late as 1997 would cease to function properly after 1999. The case settled for $110 million.

PUBLISHED DECISIONS

  • In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litig., 99 F. Supp. 3d 288 (E.D.N.Y. 2015)
  • In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litig., 13-MD-2451 ADS AKT, 2014 WL 1598017 (E.D.N.Y. Apr. 21, 2014)
  • Cannon v. Wells Fargo Bank. N.A., C-12-1376 EMC, 2014 WL 324556 (N.D. Cal. Jan. 29, 2014)
  • Gutierrez v. Wells Fargo Bank, N.A., 730 F. Supp. 2d 1080 (N. D. Cal. 2010)
  • Gutierrez v. Wells Fargo Bank, N.A., 2010 WL 1233810 (N.D. Cal. 2010)
  • In re Checking Account Overdraft Litig., 694 F. Supp. 2d 1302 (S.D. Fla. 2010)
  • In re Checking Account Overdraft Litig., 677 F. Supp. 2d 1367 (J.P.M.L. 2009)
  • In re Neurontin Marketing and Sales Practices Litig., 748 F. Supp. 2d 34 (D. Mass. 2010)
  • In re Neurontin Marketing and Sales Practices Litig., 433 F. Supp. 2d 172 (D. Mass. 2006)
  • Natural Gas Anti-Trust Cases I, II, III & IV, 2006 WL 5377849 (Cal. Superior 2006)
  • California v. NRG Energy, Inc., 391 F.3d 1011 (9th Cir. 2004)
  • In re Western States Wholesale Natural Gas Antitrust Litig., 346 F. Supp. 2d 1123 (D. Nev. 2004)
  • In re California Retail Natural Gas and Electricity Antitrust Litig., 170 F. Supp. 2d 1052 (D. Nev. 2001)
  • In re Synthroid Marketing Litig., 110 F. Supp. 2d 676 (N.D. Ill. 2000)
  • Medimatch, Inc. v. Lucent Technologies, Inc., 120 F. Supp. 2d 842 (N.D. Cal. 2000)
  • In re American Family Enterprises, 256 B.R. 377 (D. N.J. 2000)
  • Ammari Electronics v. Pacific Bell Directory, 2011 WL 5547588 (Cal. App. 2011)