Richard Bress is a partner in Latham & Watkins’ Washington, D.C. office. He advises clients on appellate and Supreme Court litigation, as well as high-stakes strategic litigation challenging federal and state laws and federal agency actions.
Mr. Bress has argued scores of appellate cases, including eight in the Supreme Court, on a broad range of nationally important matters. He also has led numerous lawsuits successfully challenging the constitutionality of federal, state, and local government actions.
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 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’ high-profile engagements include the following:
- PNE Energy Supply LLC v. Eversource Energy, 974 F.3d 77 (1st Cir. 2020). As lead counsel for co-defendant Avangrid, Inc., secured affirmance of judgment dismissing billion-dollar antitrust claims as inconsistent with FERC tariffs and thus foreclosed by filed rate doctrine.
- Merck & Co. v. U.S. Department of Health and Human Servs, 962 F.3d 531 (D.C. Cir. 2020); Merck & Co. v. U.S. Department of Health and Human Servs, 385 F. Supp. 3d 81 (DDC 2019). As lead counsel in case hailed by LMG as life sciences impact case of the year, representing Merck, Amgen, and Eli Lilly, obtained a complete vacatur of HHS rule requiring disclosure of wholesale acquisition cost of drugs in television advertisements, on ground that rule exceeded Secretary’s statutory authority, and then secured affirmance of that judgment on appeal.
- In re Millennium Lab Holdings II, LLC, 945 F.3d 126 (3d Cir. 2019). Representing Millenium, secured affirmance of judgment that Article I bankruptcy court had authority to approve plan with nonconsensual releases, and that objections to the plan were equitably moot.
- American Beverage Association v. City of San Francisco, (916 F.3d 749 (9th Cir. 2019) (en banc). As lead counsel for the leading non-alcoholic beverage trade organization, and arguing on behalf of the plaintiff coalition in their collective challenge to San Francisco ordinance requiring an unprecedented black-box health warning on all ads for beverages with added sugar, won unanimous victories before a Ninth Circuit panel and then the court of appeals en banc, which reversed the district court’s denial of a preliminary injunction and ruled that the plaintiffs are likely to succeed in their First Amendment challenge to this compelled speech requirement.
- National Association of Wheat Growers v. Zeise, No. 2:17-CV-2401-WBS, 2020 WL 3412732 (E.D. Cal. June 22, 2020); National Association of Wheat Growers v. Zeise, 309 F. Supp. 3d 842, 849 (E.D. Cal. 2018). Representing Monsanto Company and arguing on behalf of coalition of Monsanto and numerous major agriculture trade associations, obtained a preliminary injunction from the District Court for the Eastern District of California and then a permanent injunction against enforcement of California’s Proposition 65 warning requirement as to the herbicide glyphosate on First Amendment grounds, because the cancer warning would be misleading and factually controversial as to glyphosate. This was the first, and so far, the only time a federal court has enjoined a Proposition 65 warning requirement on First Amendment grounds. The case remains pending before the district court.
- Breiding v. Eversource Energy, 939 F.3d 47 (1st Cir. 2019). As lead counsel for co-defendant Avangrid, Inc., secured affirmance of judgment dismissing billion-dollar class action antitrust claims as inconsistent with FERC tariffs and thus barred by the filed rate doctrine.
Representative US Supreme Court Experience
- Mayo Collaborative Services v. Prometheus Laboratories, Inc., 130 S. Ct. 3543 (2010) : 561 U.S. 1040. Lead counsel for respondent in high-profile case addressing the standards for patent-eligibility of medical treatment patents.
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (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.
- 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 Appellate Experience
- Woolsey v. J.P. Morgan Ventures Energy Corp., 691 Fed. Appx. 308 (9th Cir. 2017). After arguing successfully in the district court for dismissal of class action RICO claims seeking over a billion dollars 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., 854 F.3d 332 (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.
- 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.
- BNSF Ry. Co. v. Surface Transp. Bd., 741 F.3d 163 (D.C. Cir. 2014). As lead counsel in appeal of agency’s decision on remand to reaffirm its restitution order, succeeded in obtaining vacatur of that order.
- BNSF Ry. Co. v. Surface Transp. Bd., 604 F.3d 602 (D.C. Cir. 2010). As lead counsel in appeal, succeeded in obtaining decision remanding to agency for reconsideration its restitution order requiring company to pay hundreds of millions of dollars for allegedly unreasonable rates.
- 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.
- 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.
- 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.
- 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.
- “Federal Judge Enjoins California’s Proposition 65 Cancer Warning for Glyphosate As “Misleading”,” Latham & Watkins Article (March 2018)
- “We’ve Got Washington Covered - Agency Insight Series,” Latham & Watkins Newsletter (March 2014)
- “US Supreme Court Narrows Alien Tort Statute Exposure,” Latham & Watkins Client Alert (April 2013)
- “U.S. Supreme Court Rules “First Sale” Doctrine Applies to Foreign-Made Goods,” Latham & Watkins Article (March 2013)
- “US Supreme Court Holds That Liability Under the Torture Victim Protection Act Extends Only to Natural Persons and Does Not Extend to Organizations,” Latham & Watkins Client Alert (May 2012)
- “Clear And Convincing Evidence In Invalidity Defense,” Latham & Watkins Article (July 2011)
- “’Willful Blindness’ And Induced Patent Infringement,” Latham & Watkins Article (June 2011)
- “Supreme Court Holds that the Patent Act Requires Invalidity Defense to be Proved by Clear and Convincing Evidence,” Latham & Watkins Client Alert (June 2011)
- “Supreme Court Holds That Bayh-Dole Act Does Not Automatically Strip Employees Of Rights In Their Federally Funded Inventions,” Latham & Watkins Client Alert (June 2011)
- “Supreme Court Says “Willful Blindness” Satisfies Knowledge Requirement for Inducement of Patent Infringement,” Latham & Watkins Client Alert (June 2011)
- “Reaffirming the Patentability of Medical Treatment Methods,” Latham & Watkins Client Alert (January 2011)
- “Supreme Court’s Decision Helps Protect Wholesale Energy Contracts from Regulatory Interference,” Latham & Watkins Client Alert (February 2010)
- “A Deal Is Still a Deal: Morgan Stanley Capital Group v. Public Utility District No. 1,” Latham & Watkins Article (January 2008)
- “Ninth Circuit Decisions Threaten Market-Based Rate Contracts,” Latham & Watkins Client Alert (March 2007)
- “Public International Law Practice,” Latham & Watkins Newsletter (September 2005)