Mark C. Fleming


Vice-Chair, Appellate and Supreme Court Litigation Practice

Fleming, Mark C.

Mark Fleming is vice-chair of WilmerHale's Appellate and Supreme Court Litigation Practice. Mr. Fleming has worked on more than 100 appellate cases and personally presented oral argument in 22 of them, including five before the Supreme Court of the United States and seven before the US Court of Appeals for the Federal Circuit. He has also argued before the First, Third, Eighth, Ninth, 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.

Honors & Awards

  • Adviser, American Law Institute for Restatement of the Law Third, Conflict of Laws Project (2015)
  • 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


March 21, 2016

MIP Names WilmerHale Patent Contentious Firm of the Year and Natalie Hanlon Leh Colorado's Outstanding IP Litigator of the Year

In addition, the firm was recognized for its role in two “Milestone Cases of the Year:” Akamai Technologies v. Limelight Network (Fed. Circuit, August 2015), in which the firm argued on behalf of Akamai, and Authors Guild v. Google (Court of the Appeals for the Second Circuit, October 2015) in which the firm represented Google.

January 20, 2016

Law360 Selects WilmerHale as Appellate Practice Group of the Year for the Fifth Time

The firm's Appellate and Supreme Court Litigation Practice has been recognized by Law360 as a Practice Group of the Year for the fifth time, showcasing some of the firm's significant victories during 2015.

December 31, 2015

Federal Circuit Reversed $74M Judgment in Favor of Cisco

On December 28, 2015, WilmerHale achieved a significant victory for Cisco Systems, when a panel of the Federal Circuit unanimously reversed a $74 million judgment against Cisco after concluding that plaintiff Commil USA, LLC had failed to prove at trial that Cisco's products actually infringe Commil's patent.

July 22, 2015

Bragging Rights Go to WilmerHale

The National Law Journal reports that WilmerHale argued the most cases during the recent US Supreme Court term.

July 20, 2015

WilmerHale Partner Mark Fleming Elected Council Member of Boston Bar Association

WilmerHale Partner Mark Fleming has been elected Member of the Council for the Boston Bar Association. Fleming will serve a three-year term beginning in August 2015.

June 12, 2015

Braintree Labs Defeats Novel Labs in Ongoing Patent Infringement Case

On June 2, 2015, WilmerHale obtained a significant victory for Braintree Laboratories, Inc. (Braintree) in a patent infringement matter at the US District Court for the District of New Jersey.

March 6, 2015

303 Conservatives File Historic Amicus Brief in Marriage Equality Case Before US Supreme Court

Project Right Side and former RNC Chairman Ken Mehlman formally filed an amicus brief with the United States Supreme Court involving four landmark cases slated to be heard on April 28, 2015 concerning government recognition of the freedom to marry.

March 6, 2015

Partner Mark Fleming Selected as Adviser for American Law Institute Project

WilmerHale Partner Mark C. Fleming has been chosen to serve as an adviser on a new project recently launched by The American Law Institute (ALI) titled Restatement of the Law Third, Conflict of Laws.

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.

Recent Highlights

  • 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.
  • Almanza-Arenas v. Lynch: In a closely watched case, Mr. Fleming won a unanimous ruling in the en banc Ninth Circuit involving the “divisibility” of state criminal offenses for purposes of federal immigration and sentencing law.
  • 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
  • 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.

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


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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


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