J. Scott Ballenger

Scott Ballenger is a partner in the Washington, D.C. office of Latham & Watkins. Prior to joining Latham & Watkins, Mr. Ballenger served from 1996-1997 as a law clerk to the Hon. J. Clifford Wallace of the United States Court of Appeals for the Ninth Circuit, and during the October 1997 Term as a law clerk to the Hon. Antonin Scalia, Associate Justice of the United States Supreme Court. He then served as Senior Counsel to Assistant Attorney General Joel Klein in the Antitrust Division of the Department of Justice, where he worked on David Boies's trial staff and briefing team for the Division's landmark monopolization case United States v. Microsoft.

Since joining Latham & Watkins in 1999, Mr. Ballenger has focused on appellate and Supreme Court litigation, and on strategic analysis and briefing in class action and other high-stakes district court litigation. He has briefed and argued appeals in the Supreme Court of the United States and various federal circuit courts of appeals and state appellate courts, as well as complex dispositive motions in district courts. He also has written dozens of petitions for certiorari, briefs in opposition to certiorari, and amicus curiae briefs in the Supreme Court at both the certiorari and merits stages. The Supreme Court has granted nine of his petitions in the last five years. The 2008 edition of the Legal 500 describes Mr. Ballenger as "phenomenal," and reports that another appellate practitioner interviewed for the publication said that "he presented an en banc argument in the D.C. Circuit that blew me away."  Illustrative matters and experience include:

• Recently briefed and argued Union Pacific Railroad Company v. Brotherhood of Locomotive Engineers and Trainmen, No. 08-604, in the Supreme Court of the United States, for Union Pacific.  The case involves important questions surrounding the finality of arbitral awards, Congress's power to foreclose judicial review of constitutional claims, and the requirements of due process in arbitration.
• Convinced the Supreme Court to grant review in Union Pacific Railroad Company v. Regal-Beloit Corporation, No. 08-1554, which will be argued in the spring of 2010.  The case involves several questions of great importance to international shipping.
• Appeals in cutting-edge patent cases before both the Federal Circuit and the United States Supreme Court.  Mr. Ballenger was the principal author of the merits briefing for Genentech in MedImmune v. Genentech, 549 U.S. 118 (2007), and of the certiorari and merits briefing for Quanta Computer in the landmark patent exhaustion case Quanta Computer, Inc. v. LG Electronics, 128 S.Ct. 2109 (2008).  In the Federal Circuit he recently filed a petition for rehearing en banc concerning the "divided infringement" issues in Muniauction v. Thomson, and represented Prometheus Labs in Prometheus v. Mayo, which held that medical diagnostic and treatment methods are patentable under § 101.
• Mr. Ballenger has also been the principal author of the merits briefing in five non-patent cases before the Supreme Court, including the winning briefs for the University of Michigan Law School in its landmark affirmative action case Grutter v. Bollinger, 539 U.S. 306 (2003), for Arthur Andersen in its successful effort to get its conviction for obstruction of justice overturned, Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), and for the petitioners in two cases decided by the Supreme Court last Term: Entergy et al. v. Riverkeeper, concerning EPA's authority to use cost-benefit analysis under the Clean Water Act, and BNSF et al. v. United States, which addressed whether parties liable for environmental cleanup under CERCLA are jointly and severally liable, or whether they instead are entitled to apportionment of the cleanup costs based on relative responsibility.  (Latham's client prevailed in both cases).
• In a groundbreaking lawsuit against the FDA, Abigail Alliance v. von Eschenbach, 445 F.3d 470 (2006), Mr. Ballenger convinced a panel of the D.C. Circuit to recognize a new constitutional right of access to experimental drugs for terminally ill patients.  Mr. Ballenger defended that ruling at a rare en banc rehearing before the full D.C. Circuit, which reversed over a vigorous dissent.  The Food and Drug Law Institute has called Abigail Alliance possibly the most important case in the history of food and drug law.
• In March 2008 Mr. Ballenger argued and won an important appeal for Domino's Pizza, Inc. before the Eighth Circuit, obtaining reversal of a district court decision that interfered with the nationwide roll-out of Domino's new custom-designed store computer systems.
• Mr. Ballenger had substantial responsibility for the Tenth Circuit briefing for Joseph Nacchio, the former CEO of Qwest Communications, that produced an appellate reversal of Mr. Nacchio's conviction for insider trading.  The Wall Street Journal Online called Nacchio's opening brief  "The Great American Appellate Brief."
• In late 2007 Mr. Ballenger briefed and argued a novel motion to dismiss SEC enforcement proceedings against Salvatore Sodano, the former head of the American Stock Exchange, and won a virtually unprecedented complete dismissal of the proceedings.
• Illustrative current matters include a multi-billion dollar class certification appeal in the Seventh Circuit, and the briefing for the Golden Gate Yacht Club and BMW/Oracle Racing in the current litigation in the New York Court of Appeals over who will be the legitimate Challenger of Record for the next America's Cup.
  

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