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.
Mr. Ballenger’s practice focuses on appellate and Supreme Court litigation, as well as strategic analysis and briefing in antitrust and other high-stakes district court litigation. He briefed and argued two cases in the Supreme Court this past Term, including a victory for Union Pacific Railroad Company in Kawasaki Kisen v. Regal-Beloit Corp., a case that reshapes the liability regime governing cargo loss for a trillion dollars a year in U.S. foreign commerce. The Supreme Court has granted ten of his petitions in the last five years—well more than half, against the backdrop that the Court grants less than 1% overall. 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.”
The best appellate lawyers are generalists—because judges are, and because highly specialized lawyers often fail to appreciate the extent to which deeply held assumptions in particular fields may be vulnerable or malleable in appellate courts. Illustrative recent matters include:
Constitutional Law
Mr. Ballenger has deep experience in complex and high-profile issues of constitutional law. He was the principal author of the winning briefs for the University of Michigan Law School in Grutter v. Bollinger, 539 U.S. 306 (2003), and for Arthur Andersen in its successful effort to get its Enron-related conviction overturned, Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). In a groundbreaking lawsuit against the FDA, Abigail Alliance v. von Eschenbach, 445 F.3d 470 (2006), he 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. And he has written briefs and advised clients in several important First Amendment cases, including Tennessee Secondary Schools Athletic Association v. Brentwood Academy, 551 U.S. 291 (2007), United States v. Stevens, 130 S. Ct. 1577 (2010), Christian Legal Society v. Martinez, No. 08-1371 (2010), and Discount Tobacco City & Lottery, et al v. United States—the challenge to the new federal tobacco advertising restrictions now pending in the Sixth Circuit.
Business and Environmental Issues
Mr. Ballenger briefed and argued two commercial cases in the Supreme Court this Term: Union Pacific Railroad Company v. Brotherhood of Locomotive Engineers and Trainmen, No. 08-604, and Kawasaki Kisen Kaisha v. Regal-Beloit Corporation, No. 08-1554. He was also deeply involved in the strategy and briefing for Latham’s victory in Monsanto v. Geertson Seed Farms, No. 09-475.
Mr. Ballenger was also the principal author of the certiorari and merits briefing in two important environmental cases in 2009: Entergy et al. v. Riverkeeper, 129 S. Ct. 1498 (2009), which vindicated EPA’s authority to use cost-benefit analysis under the Clean Water Act, and BNSF et al. v. United States, 129 S. Ct. 1870 (2009), which clarified that environmental cleanup liability under CERCLA is not always joint and several but instead should often be apportioned based on relative fault. Professor Richard Lazarus, a prominent expert on environmental law, wrote that neither case “would likely have been granted without [Latham’s] skill” and that industry had long “tried and failed to persuade the Court to grant review” of the CERCLA issue in particular.
Intellectual Property
Mr. Ballenger was the principal author of the briefing in several landmark patent cases in recent years, including the merits briefing for Genentech in MedImmune v. Genentech, 549 U.S. 118 (2007), the certiorari and merits briefing for Quanta Computer in the patent exhaustion case Quanta Computer, Inc. v. LG Electronics, 128 S.Ct. 2109 (2008), and the Federal Circuit briefing for Prometheus Labs in Prometheus v. Mayo, 581 F.3d 1336 (Fed. Cir. 2009)—which recently held that medical diagnostic and treatment methods are patentable under § 101. Mr. Ballenger has spoken extensively to industry and bar groups concerning the patent exhaustion issues in Quanta and the limitations on licensee challenges to the validity of patents after MedImmune.
White-Collar Criminal/Regulatory Matters
In addition to the briefing for Arthur Andersen before the Supreme Court, Mr. Ballenger recently briefed and argued the appeal for one of the defendants in what the Second Circuit has called “the largest criminal tax case in American history”—the prosecutions arising out of KPMG’s tax practice in the late 1990s. See United States v. Stein, 541 F.3d 130 (2nd Cir. 2008). He wrote the appellate and Supreme Court briefs for Joseph Nacchio, the former CEO of Qwest Communications, in his insider trading case. The Wall Street Journal Online called Nacchio’s opening brief “The Great American Appellate Brief.” In 2007 Mr. Ballenger also briefed and argued a novel motion to dismiss SEC enforcement proceedings against Salvatore Sodano, the former head of the American Stock Exchange, and won an unprecedented complete dismissal from the administrative law judge.