Richard Bress is a partner in the Washington, D.C. office of Latham & Watkins. He focuses his practice on appellate and Supreme Court litigation as well as strategic analysis and briefing in high stakes trial court litigation and agency proceedings.
Mr. Bress has argued scores of appellate cases, including eight in the Supreme Court on a broad range of nationally important matters. He has particularly extensive experience in the area of administrative law, including handling numerous appeals involving the Department of Agriculture, the EPA, the FCC, the FDA, FERC and the STB.
Mr. Bress is consistently recognized as one of the top US appellate and Supreme Court advocates by The Legal 500 US and Chambers USA, which have described him as "a strong appeals lawyer who provides great representation'" and has "an impressive range of experience at the top level." He is a Fellow of the American Academy of Appellate Advocates, and has been recognized consistently by Washingtonian magazine as one of Washington, D.C.'s "Top Appellate Lawyers" and by Best Lawyers as one of the "Best Lawyers in America" in the area of appellate law, based on peer recommendations. In 2013, Mr. Bress was named an “Appellate MVP” by Law360, and in 2015 he was named a “Client Service All-Star” in BTI Consulting Group’s survey of US corporate leaders.
In addition to his practice, Mr. Bress is the Global Chair of the firm’s Ethics Committee. He previously served as a member of the firm’s Executive Committee.
Mr. Bress previously served as an Assistant to the Solicitor General of the United States. During his tenure, he argued several cases before the Supreme Court, drafted more than 100 briefs (including petitions for and briefs in opposition to certiorari) and assisted in the development of the government’s position on many federal issues.
Before entering practice, Mr. Bress served as a law clerk to the Honorable Justice Antonin Scalia and D.C. Circuit Judge Stephen F. Williams. He is admitted to the bars of the Supreme Court of the United States and every federal circuit.
Mr. Bress' recent high-profile engagements include the following:
- Woolsey v. J.P. Morgan Ventures Energy Corp., No. 15-56697 (9th Cir. May 12, 2017). After arguing successfully in the district court for dismissal of class action RICO claims seeking over US$1 billion in damages from defendants’ purported manipulation of California wholesale energy prices, as lead counsel on appeal obtained affirmance of that judgment on grounds that, because the challenged wholesale prices had been accepted by FERC, the filed rate doctrine barred the lawsuit.
- Wilmington Trust Co. v. AEP Generating Co., No. 16-3496 (6th Cir. April 14, 2017). As lead counsel for plaintiffs/appellants, obtained ruling reversing dismissal of breach of contract claim in multi-billion dollar lease dispute, and ordering entry of partial summary judgment for plaintiffs/appellants.
- Atay v. County of Maui, 842 F.3d 688 (9th Cir. 2016). As lead counsel for plaintiffs/appellees, obtained affirmance of district court judgment invalidating county’s ban on biotechnology crops as preempted by federal and state law.
- Robert Ito Farm, Inc. v. County of Maui, 842 F.3d 681 (9th Cir. 2016). As lead counsel for plaintiffs/appellees, defeated constitutional challenge by proposed intervenor to denial of its motion for intervention in the district court.
- Hawai'i Papaya Indus. Ass'n v. County of Hawaii, 666 F. App'x 631 (9th Cir. 2016). Argued on behalf of plaintiffs/appellees in successful defense of district court judgment invalidating county’s ban on biotechnology crops as preempted by federal and state law.
- Maher Terminals LLC v. Fed. Mar. Comm’n, 816 F.3d 888 (D.C. Cir. 2016). As lead counsel, successfully challenged federal agency’s rejection of discriminatory pricing claim in dispute with the Port of New York and New Jersey over the terms of a multi-billion dollar lease.
- N.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dept of Health & Mental Hygiene, 110 A.D.3d 1 (1st Dep’t 2013). As lead counsel, obtained ruling by New York’s high court that the infamous NYC “soda ban” violated the state’s constitutional separation of powers.
- InterDigital Communications LLC v. International Trade Commission, 718 F.3d 1336 (Fed. Cir. 2013), vacated as moot by 2014 U.S. LEXIS 2794 (Apr. 21, 2014). As lead counsel, obtained vacatur of ITC order dismissing patent infringement investigation for arbitration; Federal Circuit held that the respondent’s claim of arbitrability was “wholly groundless.”
Representative US Supreme Court Experience
- Mayo Collaborative Services v. Prometheus Laboratories, Inc., 130 S.Ct. 3543 (2010). Lead counsel for respondent in high-profile case addressing the standards for patent-eligibility of medical treatment patents.
- Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County, 554 U.S. 527 (2008). Lead counsel for respondent in support of petitioners in landmark case reversing the Ninth Circuit and reaffirming that contract rates for wholesale electricity can be modified by FERC only in extraordinary circumstances of public necessity.
- Safeco Insurance Co. v. Burr, 551 U.S. 47 (2007). Principal author of successful merits briefing for co-petitioner GEICO in case establishing the standard for proving “willfulness” under the Fair Credit Reporting Act.
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). Lead counsel for co-petitioners in successful First Amendment challenge to Massachusetts’ regulation of tobacco advertising.
- Department of Commerce v. House of Representatives, 525 U.S. 316 (1999). A principal author of merits brief for the House of Representatives in its successful challenge to President Clinton’s plan to use statistical sampling in the decennial census.
- Atherton v. United States, 519 U.S. 213 (1997). Successfully argued on behalf of the United States that federal “gross negligence” standard for officers and directors of national banks establishes a floor on the expected level of care.
- Varity Corp. v. Howe, 516 U.S. 489 (1996). Principal author of merits brief for the United States in landmark ERISA case concerning rights of individual employees injured by a plan fiduciary’s breach of fiduciary duties.
- Barnett Bank v. Nelson, 517 U.S. 25 (1996). Successfully argued on behalf of the United States that federal banking statute preempted a state law prohibiting banks from selling insurance products.
- Curtiss-Wright v. Schoonejongen, 514 U.S. 73 (1995). Successfully argued on behalf of the United States that standard reservation of rights clause in employee benefit plan suffices to preserve sponsor’s ability to amend the plan.
Other Representative Administrative Law Appeals Experience
- BNSF Railway Co. v. Surface Transportation Board, 12-1327 (D.C. Cir. Jan. 31, 2014). As lead counsel, obtained vacatur of largest rate reparations order ever issued against a railroad.
- Center for Food Safety v. Vilsack, 636 F.3d 1166 (9th Cir. 2011). As lead counsel for intervenor Monsanto Co., obtained ruling vacating preliminary injunction that barred all cultivation of certain genetically engineered crops.
- Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010). Principal author of successful petition for certiorari and merits briefing in high-profile environmental case reversing the Ninth Circuit and addressing the limits of courts’ equitable powers to enter injunctions for NEPA violations.
- ACS of Anchorage, Inc. v. FCC, 290 F.3d 403 (D.C. Cir. 2002). As lead counsel, successfully challenged unlawfully retroactive rate refund awards.
- Sithe/Independence Power Partners, L.P. v. FERC, 285 F.3d 1 (D.C. Cir. 2002). As lead counsel, successfully challenged FERC order requiring rate refunds.
- Building Owners & Managers Association, Int’l v. FCC, 254 F.3d 89 (D.C. Cir. 2001). As lead counsel for industry intervenors, successfully defended FCC order authorizing subscribers to erect satellite dishes on leasehold property; court rejected landlords’ constitutional takings claim.
- Sithe/Independence Power Partners, L.P. v. FERC, 165 F.3d 944 (D.C. Cir. 1999). As lead counsel, successfully challenged FERC’s calculation of transmission loss charges.
Other Representative Appellate Experience
- United States ex rel Long v. GSD&M Idea City, LLC, 798 F. 3d 265 (5th Cir. 2015). As lead counsel, successfully defended dismissal of False Claims Act qui tam suit on judicial estoppel grounds for relator's failure to declare the suit an asset in bankruptcy proceedings.
- Exela Pharma Sciences, LLC v. Lee, 781 F. 3d 1349 (Fed Cir. 2015). As lead counsel for intervenor Cadence Pharmaceuticals, Inc., obtained affirmance of dismissal of suit attacking the validity of a patent; Federal Circuit held that the PTO’s decision to revive an untimely patent application is not subject to collateral challenge under the APA.
- Center for Food Safety v. Vilsack, 718 F.3d 829 (9th Cir. 2013). As lead counsel for intervenor Monsanto Co., successfully defended judgment and obtained precedent-setting ruling affirming Department of Agriculture’s deregulation of genetically engineered crops.
- Center for Food Safety v. Vilsack, No. 11-16564, 2012 U.S. App. LEXIS 23466 (9th Cir. Nov. 15, 2012). As lead counsel for intervenor Monsanto Co., successfully defended judgment dismissing challenge to Department of Agriculture’s issuance of permits for genetically modified crop.
- Cellco Partnership v. FCC, 700 F.3d 534 (D.C. Cir. 2012). As lead counsel for Leap Wireless and oralist on behalf of intervenor group constituting much of the wireless telecommunications industry, successfully opposed challenge by Verizon Wireless to FCC rule requiring it to provide competitors access to data roaming services.
- Omnicom Group, Inc. v. 880 West Long Lake Associates, No. 11-2022 (6th Cir. Nov. 9, 2012). As lead counsel, successfully defended trial court judgment in multi-million dollar commercial lease dispute.
- Corey Airport Services, Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293 (11th Cir. 2012) (per curiam). No. 11-10580. As lead counsel for winning bidder on government contract, obtained complete reversal of adverse Section 1983 judgment, entered upon jury verdict, awarding compensatory and punitive damages to losing bidder; court rejected notion that “political outsider” is not a cognizable class for equal protection purposes.
- Illumina Inc. v. Affymetrix, Inc., No. 2011-1145, 1146 (Fed. Cir. Aug. 18, 2011). As lead counsel, obtained summary affirmance of district court’s claim construction and judgment of non-infringement.
- Prometheus Laboratories, Inc. v. Mayo Collaborative Services, 581 F.3d 1336 (Fed. Cir. 2009), rev’d by 130 S.Ct. 3543 (2010). As lead counsel, obtained vacatur of district court dismissal and holding that innovative medical treatment process was patent-eligible.
- Baden Sports, Inc. v. Molten USA, Inc., 556 F.3d 1300 (Fed. Cir. 2008). As lead counsel, obtained reversal of multi-million dollar false advertising judgment in precedent-setting Lanham Act appeal.
- Independence Park v. United States, 449 F.3d 1235 (Fed. Cir. 2006). As lead counsel, obtained ruling affording property owners the right to seek future damages for continuing effects of past uncompensated, constitutional taking.
- E.I. DuPont De Nemours & Co. v. United States, 365 F.3d 1367 (Fed. Cir. 2004). As lead counsel, obtained reversal of judgment and a holding enforcing indemnity against government for environmental cleanup of World War II munitions plant; Federal Circuit held that indemnity was covered by general appropriation in post-war statute and thus permitted by the Anti-Deficiency Act.
- United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214 (D.C. Cir. 2003). As lead counsel, obtained affirmance of judgment dismissing qui tam suit under first-to-file rule.
- Cienega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003). As lead counsel in precedent-setting constitutional takings case, obtained reversal of judgment that had been entered for the government; Federal Circuit held that a federal statute eliminating developers’ mortgage prepayment rights was a taking of property requiring payment of just compensation.
- Landgraff v. Columbia/HCA Healthcare Corp., 2002 U.S. App. LEXIS 2334 (6th Cir. 2002). As lead counsel, obtained affirmance of judgment rejecting putative class-action claim in ERISA stock-drop case.
- Miller-Holzwarth, Inc. v. United States, 200 U.S. App. LEXIS 2969 (Fed. Cir. 2000). As lead counsel, obtained reversal of ruling imposing sanctions on client and trial counsel in government contacts case.