Richard Bress is a partner in Latham’s 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.
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 an “excellent advocate, a strategic thinker, a fantastic writer” and a “superb” lawyer with “an impressive range of experience at the top level,” who “provides great representation.” He is a Fellow of the American Academy of Appellate Advocates, and has been recognized consistently by Best Lawyers as one of the Best Lawyers in America in the area of appellate law, based on peer recommendations. In the 2020 and 2021 issues of Benchmark Litigation, he was recognized as a Litigation Star, and in 2015, Mr. Bress 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 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:
- 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.
- Merck & Co. v. Department of Health and Human Services, Case No. 19-cv-01738 (DDC July 8, 2019). Representing Merck, Amgen, and Eli Lilly, obtained within 24 days of filing complaint 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.
- 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 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.
- 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.
- 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.
- 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) : 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
- 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.
- 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; and 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.
- BNSF Railway Co. v. Surface Transportation Board, 2014 U.S. App. LEXIS 7884 (D.C. Cir., Apr. 25, 2014): As lead counsel, obtained vacatur of largest rate reparations order ever issued against a railroad.
- N.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 2013 N.Y. App. Div. LEXIS 5423 (2013): 110 A.D. 3d 1. 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.
- 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.
- Cellco Partnership v. FCC, 700 F.3d 534 (D.C. Cir. 2012). As lead counsel for Leap Wireless, 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) . As lead counsel for winning bidder on government contract, obtained complete reversal of adverse Section 1983 jury verdict; court rejected notion that “political outsider” is not a cognizable class for equal protection purposes.
- 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.
- Illumina Inc. v. Affymetrix, Inc., 427 Fed. Appx. 898 (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).: 561 U.S. 1040. 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 jury verdict in precedent-setting Lanham Act appeal.
- 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.
- 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.
- 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.