Perry, Philip J.

Philip J. Perry

Partner

philip.perry@lw.com
    Perry, Philip J.

    Philip J. Perry

    Partner

    philip.perry@lw.com

    Profile

    Phil Perry is a litigation partner with Latham & Watkins. His career has been unique. Mr. Perry has served in private practice as lead trial counsel on matters of national importance, but has also served as the General Counsel for two federal agencies, and in multiple high-ranking positions in the US Department of Justice. Mr. Perry’s litigation victories have frequently been featured in Law360, Bloomberg, Reuters, American Lawyer, and other national publications. The National Law Journal recognized Mr. Perry for his “remarkable successes” in its Litigation Trailblazers Report. Additionally, Mr. Perry has been recognized on multiple occasions as a BTI Client Service All-Star.

    In 2005, Mr. Perry was nominated by the President and confirmed unanimously by the US Senate as General Counsel of the US Department of Homeland Security. In that role, Mr. Perry managed an office of 1,500 lawyers responsible for all components of the department. Prior to his appointment at Homeland, Mr. Perry served as General Counsel of the White House Office of Management and Budget, addressing budgetary, regulatory, and policy issues across the Executive Branch. Mr. Perry also previously served as acting Associate Attorney General for the US Department of Justice (the Department’s third-ranking official), overseeing the Department’s Civil, Civil Rights, Environment and Natural Resources, Tax, and Antitrust Divisions. Earlier in his career, Mr. Perry served as Counsel to the US Senate’s 1997 Special Investigation of Campaign Finance Abuses.

    Mr. Perry has significant experience in federal regulation of biotechnology and has successfully litigated the leading federal cases in that field. He has also successfully litigated high-profile cases involving the US Food and Drug Administration (FDA), the US Environmental Protection Agency (EPA), and the US Departments of Agriculture, Health and Human Services, Interior, and Justice (including the Drug Enforcement Administration). He also frequently handles complex regulatory matters before those agencies. He has successfully sued to invalidate federal and state regulations and agency actions (including in cases in 2018, 2019, 2020, 2021, 2022, and 2023), and has also successfully intervened to defend multiple US agencies in challenges critical to his clients’ businesses.

    Mr. Perry also advises on federal and state express and implied preemption issues, and has taken a lead role in multiple successful civil litigation matters where such issues were critical. In addition to litigation in federal courts, Mr. Perry has also served as lead counsel in hearings before federal administrative law judges and in federal investigatory matters. Drawing on his prior experience with congressional investigations, Mr. Perry has represented national security clients in multiple congressional hearings and inquiries. Drawing on his experience in government following 9/11, Mr. Perry also handles certain matters of homeland and national security.

    Experience

    Mr. Perry’s recent litigation successes include:

    • Catalyst Pharmaceuticals, Inc. v. Becerra, 14 F.4th 1299 (11th Cir. 2021) (argued and won unanimous 11th Circuit case invalidating FDA drug approval on statutory exclusivity grounds). See here
    • Nat'l Association of Wheat Growers v. Bonta, -- F.4th --, 2023 WL 7314307 (9th Cir. 2023) (affirming summary judgment and permanent injunction against State of California for First Amendment violation)
    • United Therapeutics Corp. v. Espinosa, No. 21-cv-1686, 2021 WL 5161783 (D.D.C. Nov. 5, 2021) (argued and won case addressing federal 340B drug discounting program). See here
    • Fontem USA, LLC v. FDA, No. 22-1076 (D.C. Cir. 2023) (vacating as arbitrary and capricious a marketing denial order issued by FDA under the Tobacco Control Act)
    • Nat’l Association of Wheat Growers v. Becerra, 2020 WL 3412732 (E.D. Cal. June 22, 2020) (granting summary judgment and a permanent injunction on First Amendment grounds against enforcement by California’s Attorney General of a Proposition 65 warning; this was the first successful First Amendment challenge to Proposition 65 in the 30-plus year history of that law)
    • R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., No. 6:20-CV-00176, 2022 WL 17489170 (E.D. Tex. Dec. 7, 2022) (granting declaratory judgment and vacating FDA’s graphic warnings rule)
    • Eagle Pharmaceuticals, Inc. v. Azar, 952 F.3d 323 (D.C. Cir. 2020) (upholding District Court victory against FDA relating to orphan drug exclusivity)
    • Genus Lifesciences, Inc. v. Azar, 486 F. Supp. 3d 450, 468 (D.D.C. 2020) (granting partial summary judgment on FDA patent certification issue)
    • Athenex Inc. v. Azar, 2019 WL 3501811 (D.D.C. 2019) (Argued and won case involving FDA drug compounding policies)
    • Nat’l Family Farm Coalition v. U.S. EPA, 747 F. App’x 646 (Mem) (9th Cir. 2019) (Win on mootness grounds)
    • Eagle Pharmaceuticals v. Azar, 16-CV-790 (D.D.C. Jun. 8, 2018) (Argued and won case requiring FDA to grant seven years of marketing exclusivity for a particular chemotherapy drug). See here
    • National Association of Wheat Growers et al v. Zeise, 2:17-cv-02401 (E.D. Cal. 2018) (Injunction granted against California’s Proposition 65 warning requirement on First Amendment grounds; first such injunction granted in the 32-year history of Proposition 65). See here
    • Florida v. Georgia, No. 142, Original (U.S. Sup. 2018) (Supreme Court ruling in Florida’s favor, instructing Special Master to make factual findings, “balance the equities”, and quantify the amount of water to which Florida is entitled)
    • Par Sterile Products, LLC et al. v. Hargan, 1:17-cv-02221 (D.D.C. Apr. 4, 2018) (Successful challenge to FDA’s policy/guidance regarding pharmacy compounding practices; FDA complies with the law and changes policy in client’s favor)
    • Atay v. County of Maui, 842 F.3d 688 (9th Cir. 2016) (Affirming lower court victory invalidating county ban on biotechnology crops as preempted by federal and state law)
    • Robert Ito Farm, Inc. v. County of Maui, 111 F. Supp. 3d 1088 (D. Haw. 2015) (Argued and won federal preemption case invalidating county ban on biotechnology crops)
    • Alika Atay et al. v. County of Maui et al.1:14-cv-00582-SOM-BMK (D. Haw. 2015)
    • Teva Pharmaceutical Industries, Ltd. v. Sebelius, No. 1:14-cv-00786 (D.D.C. May 15, 2014) (Defeating challenge to pending FDA generic drug application)
    • Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (Supreme Court victory on injunction law and power of federal courts in APA litigation)
    • Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009) (Supreme Court victory on Clean Water Act issue)
    • Center for Food Safety v. Vilsack, 636 F.3d 1166 (9th Cir. 2011) (Argued and won case regarding biotechnology crop approval)
    • Walgreen Co. v. DEA, No. 12-1397 (D.C. Cir. filed Oct. 10, 2012) (Challenging DEA enforcement action and regulatory interpretation)
    • Center for Food Safety v. Vilsack, 636 F.3d 1166 (9th Cir. 2011)
    • Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010)
    • Center for Food Safety v. Vilsack, 844 F. Supp. 2d 1006 (N.D. Cal. 2012)
    • Center for Food Safety v. Vilsack, No. 10-4038, 2011 US Dist. LEXIS 31688 (N.D. Cal. Mar. 17, 2011)
    • Sottera, Inc. v. FDA, 680 F. Supp. 2d 62 (D.D.C. 2010) (Defeating FDA action regarding e-cigarettes)
    • Wyeth Pharmaceuticals v. FDA, No. 1:09-cv-01810-FJS, slip op. (D.D.C. Sept. 24, 2009) (Dispute regarding generic drugs)

    Mr. Perry has also been recognized as a leading litigator in the Euromoney Institutional Investor Benchmark: Litigation.

    Qualifications

    Bar Qualification

    • California
    • District of Columbia
    • Wyoming

    Education

    • JD, Cornell Law School, 1990
    • BA, Colorado College, 1986

    Practices

    Industries

    Recognition

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    News & Insights

    Washington D.C., USA
    August 31, 2023 In the News

    DC Circ. Says FDA Botched Part of E-Cig Review

    A D.C. Circuit panel chastised the US Food and Drug Administration Tuesday for moving the "regulatory goalpost" when the agency denied premarket authorization to Fontem US LLC's unflavored e-cigarettes products.
    Read More