Small firm, big cases: A conversation with Barbara Berens

As Reported by the Star Tribune

Barbara Berens was one of the first women hired as a stockbroker at Merrill Lynch in New York in the 1970s. After the tax­-shelter investment business dried up following federal tax reform in 1986, Berens went to law school, graduating from the University of Minnesota with honors. She's worked on a number of high­-profile cases, the most recent of which was a suit she filed on behalf of the National Football League Players Association and Vikings star Adrian Peterson. The players' union alleges NFL Commissioner Roger Goodell, the $44 million executive behind the not­-for-­profit NFL, improperly punished Peterson with a long suspension for disciplining his son with a switch because Goodell was taking public heat for his slap-­on-­the­-wrist treatment of player Ray Rice. Rice was videotaped knocking out his then-fiancée in an elevator. Goodell "cast aside the suspended players' rights to fundamentally fair disciplinary proceedings and consistent treatment in favor of trying to demonstrate to the world that the NFL had suddenly become vigilant about player safety," the petition said.

Q: What is the suit all about?

A: We and other attorneys for the NFLPA filed suit asking U.S. District Judge David Doty to vacate the December 2014 arbitration award by the NFL. The award upheld the discipline imposed on Mr. Peterson by the commissioner. We cite several reasons to vacate the award, including, among other things, the improper and retroactive application of newly adopted rules of conduct by the NFL and the bias of the arbitrator.

Q: In other words, you believe NFL Commissioner Roger Goodell is unfairly picking on your client, after he got in hot water in the Ray Rice and other violence­-against-women cases?

A: The lawsuit specifically alleges that the arbitration award sustained retroactive punishment of Mr. Peterson under Commissioner Goodell's recently adopted personal conduct policy for domestic violence without the prior notice required by fundamental principles of industrial due process. Before the implementation of this new policy, no first–time offender of any NFL disciplinary policy — as Mr. Peterson is — had ever received more than a two-­game suspension for any type of domestic violence incident. Had Mr. Peterson's discipline been lawfully assessed under the applicable disciplinary policies and practices in place before the new policy, he could not lawfully have been suspended for more than two games.

Q: How did you get involved with the NFL Players Association?

A: I became familiar with antitrust litigation between the NFL and the Players Association in 1990 when I clerked for [U.S. District Judge] David Doty. In 1993, I was appointed as a special master for purposes of the settlement of the antitrust litigation between players and the NFL. In early 2011, I was retained to represent the NFL Players Association and various players when the players filed a lawsuit in Minnesota challenging the NFL's lockout.

Q: Please describe your firm, its origins and history.

A: The firm was started in 1989 by Tim Kelly and my husband, Michael Berens. I was a partner at Leonard, Street and Deinard before joining Tim and Mike in 1999. I took over the firm and changed its name to Berens & Miller when Tim left and Justi Miller became a named partner. The firm has historically focused on complex litigation and has been fortunate enough to represent clients in significant matters while keeping its size small. We always say we do "big firm" litigation minus the big firm. We have five full-time attorneys.

Q: In what do you specialize?

A: We focus on complex business litigation representing corporate clients. I believe my specific expertise lies in contract, antitrust, securities, reinsurance and leasing matters. I also advise several clients in an ongoing basis in various areas, in a role of outside general counsel.

Q: Your "little bitty" firm, as you called it recently, was singled out for national recognition. Please explain that and what it means to your firm.

A: We are members of an association called the National Association of Minority and Women Owned Law Firms ("NAMWOLF"). There are over 140 law firms in NAMWOLF. Firms go through a significant qualification process before being asked to join NAMWOLF. Every year, NAMWOLF's advisory council, which is comprised of in­-house counsel from Fortune 500 companies and governmental agencies that support NAMWOLF and retain its law firm members, choose a law firm as the MVP — recognizing the law firm that has best demonstrated a sustained commitment to equality, diversity, excellence and collaboration.

In 2014, the advisory council gave Berens & Miller the MVP Award. The award has tremendous meaning to our firm because we are committed to those values and are honored to be recognized for that commitment by an organization in which we so strongly believe.

Q: How do you compete with larger firms, and do you charge the same rates of $700 or $800 an hour, or whatever silk-stocking firms charge?

A: I believe that we are able to deliver extraordinary legal services and personal attention. I always tell folks that I will compare our work with that of any other firm's. I have, however, been a partner at a large firm and have tremendous respect for many larger firms. In fact, we do receive referrals from several large firms when they are unable to represent clients in conflict situations. We also act as the go–to local counsel for many of the top 50 national law firms when they need a local presence in Minnesota.

Q: What's fun about your job?

A: Almost everything! I love being the managing partner of the firm and having a great deal of autonomy while providing a rewarding work environment for the people I work with. I enjoy my clients, find the practice of law challenging and rewarding, and learn something new every day. The law is fascinating to me and I love to win.

Q: What's tough about your job?

A: Losing. I hate it.

Q: What's your dream case?

A: I am lead counsel with the help of my team, there are complicated facts and legal issues, the results are important to my client and the development of the law, good opposing counsel who know when we should be fighting and when we should be saving our clients' time and money. And an engaged judge.