Scott Ballenger specializes in appellate and Supreme Court litigation, as well as strategic analysis and briefing in antitrust and other high-stakes district court litigation. He principally represents clients before the Supreme Court and other federal and state appellate courts in cases spanning a wide range of areas, including antitrust, constitutional law, business and environmental issues, intellectual property issues and white-collar criminal and regulatory matters.
Mr. Ballenger is recommended as a member of Latham’s Tier 1 Appellate practice (“’From top to bottom the team is five star quality’”) and individually by the 2013 and 2012 Chambers USA guides, based on “strong market support,” as a “talented young lawyer” who is “approachable, smart, and extremely creative.” He was selected in 2011 by Law360 as one of five “Rising Stars Under 40,” with a note that “[a]lthough the [Supreme Court] accepts only about 1 percent of the petitions it receives, over the past five years it has granted 10 petitions – more than half – written by Ballenger,” and that he has “left his mark on a slew of high-stakes, high-profile cases.” Additionally, Mr. Ballenger was listed in the 2013 Washington D.C. Super Lawyers list in the category of appellate specialists.
Before joining Latham, Mr. Ballenger served as a law clerk to Judge J. Clifford Wallace of the US Court of Appeals for the Ninth Circuit, and for Associate Justice Antonin Scalia of the Supreme Court. He also served as Senior Counsel to Assistant Attorney General Joel Klein in the Antitrust Division of the Department of Justice, where he worked on the trial and briefing team for United States v. Microsoft.
A selection of Mr. Ballenger’s most recent engagements include:
- Representation of the NCAA in several pending cases attacking the sanctions against Penn State arising out of the University’s handling of criminal activity by former assistant football coach Jerry Sandusky. Mr. Ballenger recently briefed and argued a successful motion to dismiss the antitrust case filed by Pennsylvania Governor Tom Corbett. The federal court’s opinion called his motion an “all out blitz.”
- In May 2013, Mr. Ballenger represented Union Pacific Railroad Company before the Eighth Circuit in a case against the Customs Service challenging fines (at one point exceeding US$500 million) imposed for drugs found on trains inbound from Mexico and operated by Mexican railroads. The case raises issues about the constitutionality of penalties against truly innocent parties that the Supreme Court has recognized, but reserved, for more than 200 years.
- Currently representing Guitar Center on appeal in the Ninth Circuit in the Musical Instruments antitrust litigation
White-Collar Criminal/Regulatory Matters
Mr. Ballenger was the principal author of the briefing for Arthur Andersen in its successful appeal of its criminal conviction to the Supreme Court. He also 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.”
Business and Environmental Issues
Mr. Ballenger has represented clients in many high-profile business and environmental cases. For example:
- In 2010 he briefed and argued two important cases in the Supreme Court for the railroad industry, Kawasaki Kisen Kaisha v. Regal-Beloit Corp., and Union Pacific R. Co. v. Brotherhood of Locomotive Engineers and Trainmen.
- He was the principal author of the certiorari and merits briefing before the Supreme Court in two important environmental cases in 2009: Entergy et al. v. Riverkeeper, and BNSF et al. v. United States. 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 BNSF issues in particular.
Mr. Ballenger was a principal author of the certiorari and merits briefing in several landmark recent patent cases in the Supreme Court, including MedImmune v. Genentech, Quanta Computer, Inc. v. LG Electronics, and most recently Prometheus v. Mayo.
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.
He also has written briefs and advised clients in several important First Amendment cases, including:
- Tennessee Secondary Schools Athletic Association v. Brentwood Academy
- United States v. Stevens
- Christian Legal Society v. Martinez
- Discount Tobacco City & Lottery, et al. v. United States