Ruth N. Borenstein

Partner

San Francisco, (415) 268-7348

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Education

Yale University (B.A., 1978)
;
Harvard Law School (J.D., 1986)

Practices

Appellate + Supreme Court

Transportation

Class Actions

Bar Admissions

California

Clerkships

Hon. Robert E. Keeton, U.S. District Court, District of Massachusetts (1986-1987)

Ruth Borenstein is engaged in a complex litigation practice at both the trial and appellate levels in courts throughout the country. She has successfully defended companies against tort, statutory, and contract claims in a variety of contexts, ranging from consumer class actions alleging overcharges to franchisees' complaints about profitability and franchisor support.

Ms. Borenstein is one of the country's leading experts on federal preemption of state statutes and common law that affect the pricing and service practices of airlines and motor and air cargo carriers. She has represented carriers and carrier associations in successful challenges to state laws that affect deliveries, including representing carrier associations in victories in the federal district court, First Circuit Court of Appeals, and U.S. Supreme Court in a case establishing that states may not restrict carriers' deliveries of regulated products. In addition, she regularly represents carriers in defending state law claims related to their pricing or service practices, including class actions.

Ms. Borenstein also has defended companies in several cases brought by groups of franchisees who object to changes in a franchise network and against claims of misrepresentations and violations of state unfair competition law and franchise law. Ms. Borenstein has won summary judgment for clients in those cases, and a wide range of other cases. She also has expertise in jurisdiction under the Class Action Fairness Act, including the mass action component of the Act.

Ms. Borenstein has been a member of the ACLU of Northern California Lawyers Council since 1987, serving for several years on the Executive Committee and for three years as Co-Chair.

Ms. Borenstein's work on the case, Rowe v. New Hampshire Motor Transport Association, earned her notice as a key practitioner by the National Law Journal, which also named the firm to its annual Appellate Hot List in 2009. At Harvard Law School, Ms. Borenstein served as Editor-in-Chief and Articles Editor, Harvard Women's Law Journal.

Fulfillment Services, Inc. v. UPS

528 F.3d 614 (Ninth Circuit Court of Appeals). Won dismissal, with prejudice, for UPS in nationwide class action related to compliance with tariff requirements of the Interstate Commerce Act and transportation fees paid by a large class of shippers over a five-year period. Won affirmance of judgment by Ninth Circuit. (2008)

Late-Payment Fees Class Action

With hundreds of millions of dollars at stake, won dismissal with prejudice of nationwide class action complaint on the first motion to dismiss in case involving cutting edge preemption issues arising from the collection of late payment fees that allegedly exceeded the amounts allowable under state law. No appeal filed. (2009)

Rowe v. New Hampshire Motor Transport Association

(District of Maine, First Circuit Court of Appeals, U.S. Supreme Court). Victory at all three levels of the federal courts, including unanimous U.S. Supreme Court, in high-profile federal preemption challenge to Maine laws regulating deliveries of tobacco products. Filed the case on behalf of three state trade associations of motor carriers on the ground that Maine laws were preempted by a federal statute that deregulated the motor carrier industry. Won summary judgment, which affirmed by the First Circuit Court of Appeals, and then affirmed by a unanimous United States Supreme Court. N.H. Motor Transport Ass’n v. Rowe, 377 F. Supp 2d 197 (D. Me. 2005), aff’d, 448 F.3d 66, (1st Cir. 2006), aff'd, 128 S. Ct. 989 (2008).

Franchise Litigation

Representing franchisor and its Fortune 50 parent company in several cases challenging changes to the franchise system, including to the franchise brand. Some cases involve hundreds of individual franchisee plaintiffs; one case includes claims on behalf of a class of franchisees. Claims include breach of contract, tortious interference with contract and prospective economic advantage, and alleged violations of multiple states’ franchise, unfair competition, and false advertising statutes. To date, we have won summary judgment motions in three cases and took one case to arbitration at which claimants were awarded minimal damages on a single claim and then settled on terms favorable to our clients. (Ongoing)

Billing Adjustment Class Action

Won dismissal with prejudice of putative nationwide class action for our Fortune 50 client alleging unfair business practices for requiring customers to seek billing adjustments for packages that they processed for shipment but decided not to ship. No appeal filed. (2009)

Data Manufacturing, Inc. v. UPS

557 F.3d 849 (8th Cir. Mo. 2009). Won affirmance of motion to dismiss claims challenging client’s collection of certain charges. Court of appeals held that all claims challenging amount of fees were preempted by federal law and remanded solely for submission of proof that contract at issue called for payment of the charges in dispute. (2009)

EIJ v. UPS

233 Fed. Appx. 600 (9th Cir. 2007). Won affirmance of summary judgment in favor of UPS on fraud, contract, bad faith, and other claims arising from lost shipment. (2007)