Mr. Goldberg is a partner in the Business Trial Practice Group in the firm's Washington, D.C. office and is the head of the firm's aviation industry team.
Areas of Practice
Mr. Goldberg is a trial and appellate lawyer with extensive experience since 1989 in commercial and regulatory litigation before federal and state courts and government agencies, and in patent litigation throughout the United States. Mr. Goldberg combines his more than two decades of complex litigation experience with his knowledge of and involvement with leading commercial industries to pursue results-oriented, winning strategies for his clients. Substantive areas of litigation include the airline and aviation industries, patent litigation, pharmaceuticals, international trade, antitrust, contract disputes, partnership disputes, eminent domain, international arbitration and government contracts.
· Law Clerk to The Honorable Jim R. Carrigan, U.S. District Court for District of Colorado
Airline and Aviation Law Matters
Mr. Goldberg represents airlines, their trade associations, and other companies in regulatory matters before the U.S. Federal Aviation Administration, the U.S. Department of Transportation and the U.S. Transportation Security Administration. Mr. Goldberg has more than 22 years of experience representing airlines in administrative proceedings and federal and state court cases challenging user fees and other charges imposed by national and local governments and airport authorities.
Mr. Goldberg recently represented Airlines For America ("A4A") in a challenge to cargo inspection fees which the State of Hawaii required airlines to bill, collect and remit to state authorities. In January 2012 the Department of Transportation granted A4A's petition for declaratory order, holding that the Hawaiian cargo fee law, as applied to airlines, violated the federal Anti-Head Tax Act and Airline Deregulation Act.
In 2007, Mr. Goldberg served as lead trial counsel for seven U.S. airlines challenging millions of dollars in new airport terminal charges at Los Angeles International Airport. The U.S. Department of Transportation, on June 15, 2007, ruled that the new charges unjustly discriminated against the air carriers and ordered the airport to refund all of the unlawful fees. Alaska Airlines, Inc. et al. v. Los Angeles World Airports, et al., Docket No. OST-2007-27331 ("LAX III"), Final Decision, Order 2007-6-8.
The ruling sets important legal precedent, provides critical protections to air carriers against unjust discrimination by airports, and should result in more than 100 million dollars in refunds and cost savings to the affected airlines at LAX. The case is highlighted in "A Tale of Two Airports: Why DOT Found Unjust Discrimination Against Airlines at LAX But Not at Newark," Issues in Aviation Law and Policy 20,431 (October 2007).
Mr. Goldberg also represented the same seven U.S. Airlines in the multiple challenges to the DOT LAX III decision filed in the U.S. Court of Appeals for the D.C. Circuit. In August 2009, the D.C. Circuit issued its decision, affirming important aspects of the DOT decision and remanding other issues to the agency. Alaska Airlines, Inc. v. DOT, 575 F.3d 750 (D.C. Cir. 2009). Among other things, the Court agreed with the complainant airlines that DOT had improperly failed to explain why LAX could use fair market value to set terminal charges but not airfield fees. The Court also agreed with the airlines that LAX's monopoly power was relevant to the issue of whether LAX's terminal charges were lawful.
Mr. Goldberg represented several airlines in a D.C. Circuit Court challenge to the imposition by the U.S. Transportation and Security Administration of hundreds of millions of dollars in additional "Aviation Security Infrastructure Fees" ("ASIF") for screening passengers and property at U.S. airports. In February 2009, the Court held that the fee increase was unlawful because the TSA improperly included the cost of screening non-passengers in its calculations for the cost increase. Southwest Airlines Co. v. Transportation Security Admin., 554 F.3d 1065 (D.C. Cir. 2009). Mr. Goldberg represented the airlines in remand proceedings before the TSA and recently appeared on behalf of the carriers at oral argument before the D.C. Circuit in connection with their challenge to the TSA remand decisions.
Mr. Goldberg represented A4A and several major airlines in administrative litigation before the DOT and in federal court litigation challenging landing fee surcharges imposed by a local governmental entity (Tinicum Township) at Philadelphia International Airport. In March 2008, the DOT granted A4A's petition for an order declaring that the landing fees violate the Anti-Head Tax Act because the township does not own or operate the airport. Mr. Goldberg also represented A4A as an intervenor in the township's appeal of the DOT decision, and in September 2009, the U.S. Court of Appeals for the Third Circuit denied the township's appeal. Township of Tinicum v. DOT, 582 F.3d 482 (3rd Cir. 2009).
Mr. Goldberg has defended major U.S. airlines in class actions alleging that the carriers improperly collected Mexican tourist taxes from exempt passengers. In January 2010 the U.S. Court of Appeals for the Ninth Circuit affirmed the ruling of a federal court in San Francisco which had dismissed the class action complaint challenging improper collection of the tax. McMullen v. Delta Air Lines, Inc., 2010 WL 55526 (January 5, 2010). In 2011 the U.S. District Court for the Southern District of California dismissed a class action against a major U.S. airline which had sought to challenge the airline's early-boarding program. The court held that the claims were preempted by the Airline Deregulation Act. The case is now on appeal to the Ninth Circuit.
In 2009, Mr. Goldberg successfully represented a major Latin American airline sued in a class action for allegedly failing to comply with requirements for notifying passengers of their rights after being involuntarily denied boarding.
On multiple occasions Mr. Goldberg successfully pursued cases on behalf of a coalition of international airlines that challenged air traffic control user fees imposed by the U.S. Federal Aviation Administration on flights that do not take off or land in the U.S. ("overflights"). E.g., Air Transport Association of Canada v. FAA, 323 F.3d 1093 (D.C. Cir. April 8, 2003). These cases resulted in refunds of several millions of dollars plus cost savings in the hundreds of millions of dollars for the international aviation community. He also played an important role in successfully challenging the same type of user fees in 1998. Asiana Airlines v. FAA, 134 F.3d 393 (D.C. Cir. 1998). The experience with these cases is detailed in the Spring 2006 edition of the Journal of Air Law and Commerce in an article entitled "Will it Happen Again? - FAA's Disastrous Prior Experience with User Fees."
In 2009, Mr. Goldberg represented the National Airline Council of Canada in negotiations with the FAA over FAA's plans to increase the overflight fees.
In 2006 and 2009, Mr. Goldberg represented the Air Transport Association of Canada in challenging the U.S. Department of Agriculture's attempt to increase the fees charged for inspection of aircraft entering the United States for compliance with the U.S. laws regarding agricultural products.
Mr. Goldberg represented an airline challenging passenger facility charges imposed by the airports in Minneapolis-St. Paul and Memphis. Northwest Airlines, Inc. v. FAA, 14 F.3d 64 (D.C. Cir. 1994).
Mr. Goldberg has represented international airlines in patent litigation and related patent matters (including obtaining the dismissal of the airline on territoriality grounds), and in various disputes relating to trademarks and Internet domain names.
Consumer Products Safety Commission Matters
For more than 12 years Mr. Goldberg has represented companies in matters before the U.S. Consumer Product Safety Commission, including, without limitation, consumer product recalls, and determinations whether incidents involving consumer products must be reported to the CPSC. Mr. Goldberg also assists companies in their utilization of the CPSC "fast track" recall process to preclude having the CPSC make a preliminary determination regarding whether a product poses an unreasonable safety hazard. On several occasions Mr. Goldberg has retained and worked with expert consultants to help ensure that clients comply with consumer product safety and other laws relating to consumer products. Mr. Goldberg also counsels companies on the reporting and document retention requirements enforced by the CPSC.
Patent Litigation and Commercial Law Disputes
Mr. Goldberg regularly represents companies in patent litigation and general commercial litigation. He has tried several jury cases to verdict and frequently obtains summary judgment in favor of his clients.
In February 2013, Mr. Goldberg presented oral argument in a claim construction "Markman" hearing for a company which owns a patent used at airports throughout the United States. The highly favorable Markman ruling is at: SecurityPoint Holdings, Inc. v. United States, 111 Fed. Cl. 1, 2013 WL 659543 (Feb. 20, 2013).
In 2012, Mr. Goldberg played a key role in persuading a pharmaceutical company to cease selling infringing prenatal nutritional supplements containing DHA which infringed recently issued patents for an important firm client.
In 2011, Mr. Goldberg obtained a very favorable Markman ruling for a medical devices company patent holder in litigation in the U.S. District Court for the Middle District of Florida.
In 2008, Mr. Goldberg obtained a preliminary injunction for a pharmaceutical company alleging patent infringement against a competitor. Everett Laboratories, Inc. v. Breckenridge Pharmaceutical, Inc., 573 F.Supp.2d 855 (D.N.J. 2008). Mr. Goldberg argued the appeal before the U.S. Court of Appeals for the Federal Circuit in 2009 (before the case settled). Mr. Goldberg subsequently obtained favorable settlements on behalf of this pharmaceutical company covering a wide range of products and patents.
In 2004, Mr. Goldberg was successful in obtaining the dismissal of a patent infringement suit against a major international airline, without the airline having to pay a single dollar in damages, and with most of the legal fees paid by a third party under an indemnification agreement. He obtained dismissal of a similar patent infringement lawsuit against the same airline the previous year.
Mr. Goldberg obtained a ruling from the U.S. Court of Appeals for the Fourth Circuit affirming the summary judgment entered the prior year on behalf of a major seller of telecommunications equipment against a former salesperson seeking $12 million in additional sales commissions. Rahrig v. Alcatel USA Marketing, Inc. 217 Fed. Appx. 189 (4th Cir. 2006).
In 2006, Mr. Goldberg led a trial team that obtained a jury verdict finding that the defendant managing general partners of a limited partnership had breached the fiduciary duties owed to the firm's client. The verdict was affirmed on appeal. Alloy v. Wills Family Trust, 944 A.2d 1234 (Md. App. 2008).
Mr. Goldberg successfully defended a summary judgment obtained on behalf of a major financial services company in an appeal to the U.S. Court of Appeals for the Fourth Circuit filed by a borrower who claimed that the financial services company had engaged in a fraud on the court. Asterbadi v. CIT, 176 Fed. Appx. 426 (4th Cir. 2006).
In 2007, Mr. Goldberg successfully represented a major landowner in the District of Columbia in eminent domain litigation relating to the construction of the new Washington Nationals Baseball Stadium.
In 2009, Mr. Goldberg obtained summary judgment in favor of a manufacturer and seller of computer modems on its claim under the federal Lanham Act for false advertising by a competing modem seller. In 2010, Mr. Goldberg obtained summary judgment for the same client against the counterclaim alleged by the competing modem seller.
Successful representation of trademark owners in disputes before the World Intellectual Property Organization to obtain Internet domain names; and representation of companies in contract and tort disputes relating to telecommunications and computer software and equipment and systems integration matters.
Mr. Goldberg has represented trustees and other clients in connection with the fiduciary duties owed by trustees and other fiduciaries to their beneficiaries.
International Trade Disputes
Mr. Goldberg has represented petitioners and industry intervenors in several antidumping cases before the U.S. Commerce Department and International Trade Commission, and has appeared numerous times before the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit on antidumping and customs fraud litigation matters. He also has represented importers whose goods were seized by Customs and has counseled importers and customs brokers on a wide range of import related issues. Mr. Goldberg also counsels companies on export control matters.
Represented petitioner U.S. producer of metal calendar slides in antidumping case against metal calendar slides from Japan before the ITC and Commerce Department.
Represented petitioner U.S. nepheline syenite manufacturer in antidumping case against nepheline syenite from Canada before the ITC, Commerce Department, Court of International Trade and U.S.-Canada trade dispute panel.
Represented petitioner U.S. office supply company in antidumping case against paper clips from China before the ITC and Commerce Department.
Represented U.S. wire producers' association in antidumping case against carbon steel imports from various countries before the ITC.
Represented respondent Finnish producer of cut to length steel in antidumping case before the Court of International Trade and Federal Circuit.
Represented respondent Spanish producer of cut to length steel in antidumping case before the Court of International Trade and Federal Circuit.
Represented respondent Brazilian producer of silicon magnesium in administrative review involving imports from Brazil before the Commerce Department.
Represented importer of jewelry from Taiwan in customs fraud litigation before the U.S. Court of International Trade.
Represented U.S. importer of computer chips which were seized by U.S. Customs for allegedly being "counterfeit" in efforts to obtain return of seized goods.
Represented major Italian manufacturer of furniture in broad range of Customs matters relating to entry of goods into the United States.
Obtained classification rulings from U.S. Customs Service with regard to imported items on behalf of major U.S. greeting card company.
Representation of freight forwarders employing Customs brokers on broker licensing issues.
Advice and counseling to import companies on valuation and classification issues.
Representation of inventors and other witnesses before U.S. International Trade Commission in patent 337 cases.
Representation of sunglass manufacturer in litigation involving alleged infringement of trade dress protection of competitor.
Mr. Goldberg has represented airlines in connection with allegations of price signaling and price fixing, and has represented a major telecommunications company on antitrust issues. Mr. Goldberg also has represented entities on issues relating to anticompetitive conduct in the financial services industry. Mr. Goldberg has counseled various companies and trade associations on a variety of antitrust issues.
Government Contracts Disputes
Mr. Goldberg has successfully handled more than two dozen bid protests on behalf of protesters and intervenors involving contracts for U.S. Agency for International Development, U.S. Mint, U.S. Department of Veterans Affairs, and contract disputes involving the Federal Energy Regulatory Commission and the U.S. Mint.
Mr. Goldberg has extensive experience representing U.S. and foreign companies in arbitrations before the International Chamber of Commerce (London and Spain) and the American Arbitration Association (New York, New Jersey and Maryland). Experience includes:
· the successful representation of a Chinese metallurgical coke seller in a week-long arbitration before the ICC in London over the breach of a sales contract by a U.S. subsidiary of a German trading company (over one million dollars in damages plus attorneys fees),
· the successful representation of a U.S. health company in obtaining a $900,000 award (including costs and attorneys fees) against a Greek distributor issued by the ICC in 2010, and
· the successful representation of an environmental services company suing a former client for breach of contract in an AAA arbitration in Cherry Hill, New Jersey.
· Co-Chair, International Transportation Committee, American Bar Association, June 2013 - present
· Member, Board of Governing Committee, American Bar Association Air and Space Law Forum, October 2012 - present
· Ginsberg v. Northwest: An Opportunity to Bring the Ninth Circuit into the Fold on ADA Redemption, The Air & Space Lawyer, Fall 2013
· DOT Finds Unjust Discrimination in Terminal Rents at LAX, The Transportation Antitrust Update, December 6, 2007
· A Tale of Two Airports, CCH Issues in Aviation Law and Policy 20,431, October 31, 2007
· Airline Challenges to Airport Abuses of Economic Power, 72 Journal of Air Law and Commerce 351, May 31, 2007
· How Much Is Land Worth In Baseball's Domain?, March 5, 2007
· Parry the Arbitrary, April 27, 2005
· Sheppard Mullin Antitrust Review, Vol. 2, No. 2, February 10, 2004
· Sheppard Mullin Antitrust Review, Vol. 2, No. 1, January 9, 2004
· Sheppard Mullin Antitrust Review, Vol. 1, No. 6, December 5, 2003
· adbriefs, Fall 2003
· Sheppard Mullin Antitrust Review, Vol. 1, No. 3, September 8, 2003
· Sheppard Mullin Antitrust Review, Vol. 1, No. 2, August 6, 2003
· "Will it Happen Again? -- FAA's Disastrous Prior Experience with User Fees." Journal of Air Law and Commerce, Spring 2006
· "A Safety Net for the Internet", Lead Author
· "What To Do When Local Governments Unfairly Block Development Projects," Legal Times, April, 2005
· "Intellectual Property Issues Arising with B2B Exchanges", Chapter in Aspen Treatise, 2002
· "When Unimportant Is Interesting: The Negligible Import Exception to Cumulation in Antidumping and Countervailing Duty Investigations", 25 Geo. Wash. J. Int'l L. & Econ. 721, 721-36, 1992
· "The First Thing We Do a/k/a Shakespeare and the Law (of Government Contracts)", The Clause, Board of Contract Appeals Bar Association, Spring 2002
· "Federal Appeals Court Rules TSA Overcharged Airlines", Legal Broadcast Network, February 23, 2009
· Panelist, "Air Service Incentives at Federally Funded Airports," 2013 Spring Legal Affairs Conference, Airports Council International North America, Seattle, Washington, May 15, 2013
· Moderator, Panel on Airline-Airport Relationships in 2013, International Air Transport Association 2013 Legal Symposium, Berlin, Germany, February 18, 2013
· Guest Lecturer, "Competition and Airport Charges," International Institute of Air and Space Law, Leiden, The Netherlands, February 2013
· "Key Recent Decisions Affecting Airlines," Rossdale CLE Seminar, November 15, 2012
· Panelist, Update on Aviation Litigation, ABA Air and Space Law Forum, October 2012
· Moderator, Update on Aviation Litigation, ABA Air and Space Law Forum 2012 Update, Washington, D.C., February 17, 2012
· Moderator, Panel on Airline Consolidation, International Air Transport Association 2012 Legal Symposium, Shanghai, China, February 7, 2012
· "Basic Laws and Practices Relating to U.S. Airports," Los Angeles, November 15, 2011
· Guest Lecturer, "Successful Challenges To Airport And Aviation Fees In The United States," International Institute of Air and Space Law, Leiden, The Netherlands, October 12, 2011
· Airport Charges Imposed on Airlines, Fall 2010 Legal Forum Meeting of the International Air Transportation Association, Washington, D.C., September 2010
· Moderator, Panel on Consumer Protection Issues for the Airline Industry, International Air Transport Association Legal Symposium, Lisbon, Portugal, March 1, 2010
· "U.S. Antidumping Laws and Their Impact on Chinese Manufacturers and Exporters," China Council for the Promotion of International Trade, November 16, 2009
· Panelist, Update on Aviation User Fees and Taxes, Annual Legal Meeting of ALTA, Miami, Florida, September 2009
· Panelist, Aviation Legal Issues, International Air Transport Association 2009 Legal Symposium, Bangkok, Thailand, January 2009
· Panelist, Update on Aviation User Fees and Taxes, Annual Legal Meeting of ALTA, Miami, Florida, October 2008
· "Airline Challenges to Airport Abuses of Economic Power," International Air Transport Association 2007 Legal Symposium, Istanbul, Turkey, 2007
· "ATC and Airport Privatization" (Breakout Session), The Airline Industry's Next 100 Years: New Destination With New Maps - International Air Transport Association Legal Symposium, Singapore, February 2003
· "How Airlines Can Protect Themselves Against Cyber-Attacks", Legal Advisory Council of the International Air Transport Association, Montreal, September 2001
· Annual D.C. Update Meeting of the American Bar Association Air and Space Law Forum, January 2010
· 2008 American Bar Association's Forum on Air and Space Law, September 18, 2008
· Aeropolitical Conference for Legal Issues Facing the Aviation Industry, September 11, 2008
· IATA Legal Symposium 2008, February 10, 2008
· American Bar Association Forum on Air & Space Law's 2008 Washington Update Conference, January 31, 2008
· ABA Forum on Air & Space Law, October 4, 2007, 2007 Annual Meeting and Conference