Mark Fleming is vice-chair of WilmerHale's Appellate and Supreme Court Litigation Practice. Mr. Fleming has appeared in more than 150 appellate cases and personally presented oral argument in 33 of them, including five before the Supreme Court of the United States and 13 before the US Court of Appeals for the Federal Circuit. He has also argued before the First, Third, Eighth, Ninth, Tenth and District of Columbia 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.
- Fellow, American Academy of Appellate Lawyers
- Member, American Law Institute
- Member, International Association of Defense Counsel
- Chair, Boston Bar Association Council Nominating Committee (Member 2016)
- Member, Boston Bar Association Member of Council (2015-present)
- Member, Boston Bar Association Finance Committee (2015-present)
- Chair, Boston Bar Association Amicus Committee (Chair 2013-2015; Member 2006-2013)
- Member, Boston Bar Association Task Force on the Judiciary Budget (reports issued Feb. 2009 and Feb. 2010)
- Co-Chair, Boston Bar Association International Law Section (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)
- Mr. Fleming argued and won a significant victory for a Fortune 500 technology company at the Federal Circuit. The appeals court held that three patent claims that we had challenged in an IPR adverse to an acoustics company were unpatentable. The patents related to speaker designs that the acoustics company accused our client of infringing.
- Braintree Laboratories v. Breckenridge Pharmaceutical: Mr. Fleming argued and won a significant victory at the Federal Circuit for Braintree Laboratories, Inc. when the appeals court reversed a district court's grant of summary judgment of noninfringement for Breckenridge Pharmaceutical and remanded with instructions to enter judgment in Braintree's favor. This Hatch-Waxman matter involved a patent owned by Braintree pertaining to its product SUPREP, a highly successful product designed to cleanse the colon safely before a colonoscopy.
- Mathis v. United States: Mr. Fleming argued and won a major criminal sentencing case in the Supreme Court, which also has important consequences for immigration law. He had previously argued and won the same issue in the en banc Ninth Circuit (Almanza-Arenas v. Lynch).
- Reyes Mata v. Lynch: Mr. Fleming argued and won a significant Supreme Court immigration case that confirmed the right of noncitizens to seek equitable tolling of the time for moving to reopen a removal proceeding due to ineffective assistance of counsel.
- Lenox Maclaren Surgical v. Medtronic, Inc.: Mr. Fleming argued and won a Tenth Circuit appeal involving antitrust claims brought against Medtronic by a former supplier.
- 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, including securities litigation, patent law, civil rights and constitutional law.
- Fellow, American Academy of Appellate Lawyers
- Adviser, American Law Institute for Restatement of the Law Third, Conflict of Laws Project (2015)
- Recommended by The Legal 500 United States for his appellate practice (2016-2017)
- 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, 2017)
- 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 Lawyer" for appellate litigation in the 2016 and 2017 issues of Boston Magazine, and was previously recognized as a "Rising Star" in the 2007-2013 issues
- 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)
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JD, Harvard Law School, 1997magna cum laude Executive Editor and Editor, Harvard Law Review
BA, English and German, University of King's College, Dalhousie University, 1994with honors
United States Supreme Court
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