Mark Fleming is a partner in the firm's Litigation/Controversy Department, and a member of the Appellate and Supreme Court Litigation and Government and Regulatory Litigation Practice Groups. He joined the firm in 2004.
Practice
Mr. Fleming's practice focuses on appellate litigation and other complex litigation matters. Mr. Fleming has argued cases before the Supreme Court of the United States, the US Courts of Appeals for the First, Third, Eighth, Ninth, District of Columbia, and Federal Circuits and the Massachusetts Appeals Court.
Mr. Fleming's prior experience includes clerkships with the Honorable David H. Souter of the Supreme Court of the United States, the Honorable Michael Boudin of the US Court of Appeals for the First Circuit, and the Honorable John C. Major of the Supreme Court of Canada. Mr. Fleming also served as an associate legal officer in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. Mr. Fleming was formerly an associate in the litigation department of Ropes & Gray.
Recent Highlights
- Stanford University v. Roche Molecular Systems: Mr. Fleming argued and won a closely-watched Supreme Court case regarding the effect of the Bayh-Dole Act on patent assignments. In an opinion by Chief Justice Roberts, the Court ruled 7-2 in favor of our client Roche. This is the first time that the Supreme Court has affirmed the Federal Circuit's judgment in a patent case when the United States government has urged reversal. Transcript of oral argument available here.
- Judulang v. Holder: Mr. Fleming argued and won a Supreme Court case challenging a policy of the Board of Immigration Appeals (BIA) denying certain lawful permanent residents the opportunity to seek relief from deportation. Although all but one federal court of appeals had upheld the BIA's policy, the Supreme Court, in a unanimous decision, described the BIA's approach as "headscratching," compared it to a "coin flip," and invalidated it as "arbitrary and capricious" – an unprecedented result in an immigration case. Transcript of oral argument available here.
- Shum v. Intel Corporation (Federal Circuit): Mr. Fleming represented Intel in an appeal involving a demand of over $400 million for breach of contract, breach of fiduciary duty, fraud, unjust enrichment, and other tort and equitable claims; he also presented oral argument in a separate appeal involving an award of court costs to Intel. The Federal Circuit affirmed judgment for Intel and denied rehearing en banc, and the Supreme Court denied certiorari.
- Brown v. Medtronic, Inc. (8th Circuit): Mr. Fleming argued and won affirmance of the dismissal of a putative ERISA class action against Medtronic and a number of its senior executives. Mr. Fleming has separately represented Medtronic in several successful patent-related appeals in the Federal Circuit.
- In re Plassein International (3rd Circuit): Representing the former shareholders of an acquired company, Mr. Fleming argued and won affirmance of the dismissal of a bankruptcy trustee's efforts to undo a leveraged buy-out.
- Bensayah v. Obama (DC Circuit): Mr. Fleming argued and won the first-ever merits appeal of a Guantanamo prisoner in a habeas corpus case. The opinion was the first (and so far the only) time the DC Circuit has reversed a district court's denial of habeas corpus to a Guantanamo prisoner. Mr. Fleming was also part of WilmerHale's Boumediene v. Bush team, which achieved two historic victories in 2008: the Supreme Court's ruling that Guantanamo prisoners have a constitutional right to challenge their detention and the US District Court's ruling that five of WilmerHale's six clients were unlawfully detained. (submissions available at www.wilmerhale.com/boumediene)
- US v. Goyal (9th Circuit): Mr. Fleming was part of the team representing former McAfee Chief Financial Officer Prabhat Goyal in his appeal from conviction on securities fraud and related charges. In a concurring opinion, Chief Judge Kozinski noted: “Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit. But not everyone is so lucky.”
- Mr. Fleming also argued and won an appeal by a Canadian wallpaper manufacturer from one of the largest jury verdicts in Massachusetts in 2003 (Massachusetts Appeals Court) and was part of the team that successfully defended a $1.2 million award of attorney's fees to the former general partners of a real estate partnership (Massachusetts Supreme Judicial Court).
- Mr. Fleming represented the Government of Canada in several proceedings arising out of US import tariffs on Canadian softwood lumber and wheat products, including successfully defending the decision of a binational trade panel before an Extraordinary Challenge Committee under the North American Free Trade Agreement (only the third such proceeding in NAFTA's history) and defending the NAFTA dispute resolution procedure against a constitutional challenge in the DC Circuit.
- Mr. Fleming has also filed several amicus curiae briefs in appeals involving disparate topics. During the Supreme Court's 2010 Term, these included a brief for the Pharmaceutical Research and Manufacturers of America and Biotechnology Industry Organization regarding securities fraud (Matrixx Initiatives v. Siracusano), a brief for a coalition of leading high-tech companies regarding the standard of intent for claims of induced patent infringement (Global-Tech v. Pentalpha), and a brief for libertarian advocacy groups regarding attorney's fee awards in civil rights cases (Fox v. Vice).
Professional Activities
- Member, Boston Bar Association Amicus Committee
- Member, Boston Bar Association Task Force on the Judiciary Budget (reports issued Feb. 2009 and Feb. 2010)
- Member, International Association of Defense Counsel
- Co-chair, International Law Section of the Boston Bar Association (2007-2009)
- Co-chair, Subcommittee on International Alternative Dispute Resolution of the American Bar Association (2007-2009)
- Co-Chair, Alternative Dispute Resolution Committee of the Boston Bar Association (2005-2007)
- Member of the Board of Directors, Boston Youth Symphony Orchestras
Honors and Awards
- Recognized by Law360 as an “MVP of the Year” with distinction in Appellate law (2011)
- Selected by Benchmark Litigation as a "Future Star" (2011)
- Named National Law Journal's Appellate Lawyer of the Week (June 2011)
- Named to Law360's list of "10 appellate lawyers under 40 to watch"
- Named a "New England Super Lawyers Rising Star" (formerly Massachusetts Super Lawyers) for appellate litigation in the 2007, 2008, 2009, 2010 and 2011 issues of Boston Magazine
- Recipient of the Boston Bar Association's "President's Award" in recognition of representation of Guantanamo Bay prisoners (2007)
- Named "Pro Bono Attorney of the Year" by the Political Asylum/ Immigration Representation Project (2001)
