People

Mark C. Fleming

Partner

Fleming, Mark C.

Mark 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 Supreme Judicial Court and 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.

Honors & Awards

  • Recipient of the American Immigration Lawyers Association's 2012 Jack Wasserman Memorial Award for Excellence in Litigation in the Field of Immigration Law in recognition of Judulang v. Holder
  • Recognized by Law360 as an “MVP of the Year” with distinction in Appellate law (2011)
  • Selected by Benchmark Litigation as a "Future Star" (2011, 2012, 2013)
  • Named National Law Journal's Appellate Lawyer of the Week (June 2011)
  • Named a 2013 "Rising Star" in appellate law by Law360, and selected to its list of "10 appellate lawyers under 40 to watch" in 2010
  • Named a "New England Super Lawyers Rising Star" (formerly Massachusetts Super Lawyers) for appellate litigation in the 2007, 2008, 2009, 2010, 2011, 2012 and 2013 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)

Publications & News

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June 25, 2014

WilmerHale Secures String of Supreme Court and Federal Circuit Wins

Two US Supreme Court decisions handed down on June 12 mark the latest in a string of victories secured by WilmerHale's Appellate and Supreme Litigation Court Practice during the 2013-2014 term.

June 25, 2014

US Supreme Court Decides Closely Watched Case on ERISA "Stock Drop" Class Actions

In Fifth Third Bancorp v. Dudenhoeffer, a decision written by Justice Breyer, the US Supreme Court unanimously held that plan fiduciaries are not entitled to any special “presumption of prudence” under the Employee Retirement Income Security Act of 1974 (ERISA) when they decide to buy or hold employer stock in an employee stock ownership plan (ESOP).

June 25, 2014

US Supreme Court Updates Basic Inc. v. Levinson Presumption of Reliance for Class Certification Motions in Halliburton Co. v. Erica P. John Fund, Inc.

In Halliburton Co. v. Erica P. John Fund, Inc., a decision authored by Chief Justice Roberts, the US Supreme Court on Monday reversed the Fifth Circuit's decision certifying a class in a securities fraud class action brought under section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5.

June 24, 2014

US Supreme Court Decides Closely Watched Case on Class Certification in Securities Fraud Matters

In a decision authored by Chief Justice Roberts, the US Supreme Court yesterday reversed the Fifth Circuit’s decision certifying a class in a securities fraud class action brought under section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b–5.

June 19, 2014

Unanimous U.S. Supreme Court Decides Closely-Watched Case on Patent Eligibility of Computer-Implemented Business Methods

In a unanimous decision authored by Justice Thomas, the Supreme Court today affirmed the Federal Circuit’s en banc decision invalidating the patents asserted by Alice Corporation against CLS Bank International as ineligible for patent protection under 35 U.S.C. §101 because they are directed to an abstract idea.

June 12, 2014

Diversity Committee Hosts Event With Local SABA Chapter

On May 28, the Boston Diversity Committee hosted “Speaking with Poise and Professionalism,” a discussion with Partner Mark Fleming and Counsel Kevin Prussia.

May 13, 2014

Success at the Federal Circuit: WilmerHale Earns Five Victories in One Week

WilmerHale has just completed an extremely successful week at the Federal Circuit, receiving favorable decisions in five out of six patent cases concerning various legal issues.

March 11, 2014

U.S. Supreme Court Holds that Arbitrators, Not Courts, are Entitled to Interpret Local Litigation Requirements in Bilateral Investment Treaties

January 23, 2014

US Supreme Court Holds That a Patentee Bears the Burden of Persuasion on the Issue of Infringement in a Declaratory Judgment Action

The US Supreme Court unanimously reversed a decision of the US Court of Appeals for the Federal Circuit and held that the patentee bears the burden of persuasion on the issue of patent infringement in a declaratory judgment action brought by a licensee.

January 23, 2014

Intel Corporation and Somaxon Pharmaceuticals Succeed at the Federal Circuit

Last week, WilmerHale won two appeals at the US Court of Appeals for the Federal Circuit–one for client Somaxon Pharmaceuticals and one for client Intel Corporation.

Recent Highlights

  • Medtronic, Inc. v. Mirowski Family Ventures, LLC: Mr. Fleming was part of the team that won a significant Supreme Court case for Medtronic, in which the Supreme Court unanimously restored the burden of proof to the patent owner when a licensee sues a patent owner for a declaratory judgment of non-infringement.
  •  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. The American Immigration Lawyers Association awarded Mr. Fleming its 2012 Jack Wasserman Memorial Award for Excellence in Litigation in the Field of Immigration Law for his work on this matter.
  • 01 Communique Laboratory, Inc. v. LogMeIn, Inc.: Mr. Fleming argued and won affirmance of a jury verdict of noninfringement of patent claims directed to remote access technology. The Federal Circuit’s affirmance in favor of our client LogMeIn was issued six days after oral argument.
  • 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.”
  • Massachusetts v. HHS (Defense of Marriage Act) (1st Circuit): Mr. Fleming was co-counsel to the Commonwealth of Massachusetts in its challenge to the constitutionality of the federal Defense of Marriage Act (DOMA), which directed the federal government to disregard valid marriages between couples of the same sex. The US District Court for the District of Massachusetts and the First Circuit struck down DOMA as unconstitutional – decisions that were later confirmed by the Supreme Court’s decision in United States v. Windsor. Separately, Mr. Fleming filed an amicus brief on behalf of former executive officials in Windsor defending the exercise of appellate jurisdiction in the case and on behalf of prominent Republican and conservative thought leaders in Hollingsworth v. Perry supporting same-sex marriage.
  • 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, American Law Institute
  • 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

Practices

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Education

JD, magna cum laude, Harvard Law School, 1997, Executive Editor and Editor, Harvard Law Review

BA, English and German, with honors, University of King's College, Dalhousie University, 1994

Bar Admissions

Massachusetts

United States Supreme Court

Languages

French

German

Spanish

Clerkships

The Hon. David H. Souter, US Supreme Court, 2002 - 2003

The Hon. John C. Major, Supreme Court of Canada, 1999 - 2000

The Hon. Michael Boudin, US Court of Appeals for the First Circuit, 1997 - 1998