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Bennett Evan Cooper

Ben Cooper advocates for clients in high-stakes appeals and writ proceedings in the U.S. Supreme Court, federal circuit courts, and state supreme and intermediate appellate courts from coast to coast. Ben’s practice includes appeals in a broad range of subject matter, with particular emphasis on such fields as insurance coverage and bad-faith defense; intellectual-property protection and e-commerce disputes; professional liability; federal, state, and local taxation; Native American law; and constitutional litigation. In March 2023, Ben argued before the U.S. Supreme Court in Jack Daniel’s Properties, Inc. v. VIP Products LLC, a high-profile case involving trademark parodies.

In the U.S. Court of Appeals for the Ninth Circuit, Ben is the author of Thomson Reuters’s 1,000-page treatise Federal Appellate Practice: Ninth Circuit. A current member of the Ninth Circuit’s Advisory Committee on Rules of Practice and Internal Operating Procedures, Ben previously served as the court-appointed Chair of the Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference. He began his appellate career as a law clerk to the Honorable Alex Kozinski of the Ninth Circuit. Ben is a past Chair of the American Bar Association’s Council of Appellate Lawyers and of the State Bar of Arizona’s Appellate Practice Section, Intellectual Property Section, and E-Commerce & Technology Section.

In addition to appellate advocacy, Ben works closely with trial counsel, taking the lead on or assisting with preservation of error, dispositive motions, class-action certification, motions in limine, jury instructions, and post-trial motions. He is the lead author of Thomson Reuters’s Arizona Trial Handbook and the longest-serving member of the State Bar of Arizona’s Civil Jury Instructions Committee.

Education & Credentials

Education

Harvard Law School

J.D., 1986
  • Executive Editor, Harvard Journal of Law & Public Policy
  • President, Harvard Society for Law & Public Policy
  • Winner, Ames Moot Court Competition
  • cum laude

Harvard University

A.B., 1983
  • magna cum laude in Government

Bar Admission

  • Arizona1986
  • California1987

Acknowledgements

  • The Legal 500 United States
    • Dispute Resolution, General Commercial Disputes 
  • Chambers USA, America's Leading Lawyers for Business
    • Commercial Litigation, Appellate 
  • Best Lawyers in America®
    • “Lawyer of the Year," Appellate Practice, Phoenix, 2019
    • Appellate Practice 2010-2023
    • Insurance Law 2018-2023
    • "Bet-the-Company," Litigation 2019-2023
  • Southwest Super Lawyers®
    • Appellate Law, 2007-2023
    • Top 50: Arizona Super Lawyers, 2011-2012, 2023
  • Martindale-Hubbell® rating of AV Preeminent® Judicial Edition

Prominent Assignments

  • In March 2023, argued before the U.S. Supreme Court in Jack Daniel’s Properties, Inc. v. VIP Products LLC, which is anticipated to set the legal standard for trademark parodies.
  • On a certified question from the Ninth Circuit, convinced the Arizona Supreme Court in Apollo Education Group v. National Union (2021) to adopt the insurer’s perspective of reasonableness in construing the consent-to-settlement clause of a D&O policy.
  • Persuaded the New Mexico Supreme Court in Siebert v. Okun (2021) to reverse the trial court and uphold against a jury-right challenge the constitutionality of the state’s statutory cap on medical malpractice damages.
  • Serving since 2020 as national counsel to a major insurer in business-interruption coverage litigation arising from pandemic losses from California and Washington to New Hampshire and Florida. E.g.. Fountain Enterprises v. Markel Insurance Co. (4th Cir. 2022); Precious Treasures LLC v. Markel Insurance Co. (N.J. Super. App. Div. 2022).
  • Currently representing before the Arizona appellate courts the owner of a power plant constructed on land leased from the Fort Mojave Indian Reservation in challenging, on federal Indian preemption grounds, property taxes assessed by the Arizona Department of Revenue and Mohave County.
  • Persuaded the Ninth Circuit in AMERCO v. National Union (9th Cir. 2016) to affirm the dismissal of a coverage action against a D&O insurer for $9 million in the costs of five shareholder class actions.
  • Represented the Arizona Public Safety Personnel Retirement System in constitutional litigation challenging pension-reform legislation. Hall v. Elected Officials’ Retirement Plan (Ariz. 2016); Fields v. Elected Officials’ Retirement Plan (Ariz. 2014).
  • Represented historically black colleges and universities as amici curiae, persuading a divided Fifth Circuit that the federal gift tax transferee liability of a donee for a donor’s unpaid gift tax and interest is capped by the gift’s value. United States v. Marshall (5th Cir. 2015).
  • Successfully established that newspaper-production software was eligible for the state machinery-and-equipment exemption from transaction privilege tax because newspaper publishers qualify as “manufacturers.” CCI Europe, Inc. v. Arizona Department of Revenue (Ariz. App. 2015).
  • Obtained vacation by the North Carolina Court of Appeals of the trial court’s $2.4 million in discovery sanctions against an insurer. Arnold v. Insurance Co. of the State of Pennsylvania (N.C. App. 2014).
  • Convinced an Arizona trial court to reduce a $55-million punitive-damages verdict against an insurer to $620,000, and then persuaded the appellate court to reduce it further to $155,000. Nardelli v. Metropolitan Group (Ariz. App. 2012).
  • Represented, on pro bono basis, Jewish, Catholic, and Lutheran school tuition organizations before the U.S. Supreme Court and Ninth Circuit in upholding the constitutionality of Arizona’s private-school tuition tax credit, and filed the only amicus brief approvingly cited by the U.S. Solicitor General and State of Arizona. Arizona Christian STO v. Winn (U.S. 2011).
  • Represented a Class I railroad in convincing the U.S. Supreme Court to reverse the Ninth Circuit and uphold the district court’s apportionment of railroads’ shares of CERCLA site remediation costs. Burlington Northern and Santa Fe Railway Co. v. United States (U.S. 2009).
  • Argued before the California Supreme Court on behalf of the California Public Employees’ Retirement System as to the enrollment requirement for leased employees, earning a 4-3 victory. Metropolitan Water District v. Superior Court (Cal. 2004).
  • Represented the four largest P&C insurance trade associations as to punitive damages in State Farm v. Campbell (U.S. 2003). The American Prospect noted that the High Court’s “decision … took language right from the American Insurance Association’s amicus curiae (‘friend of the court’) brief.”
  • Represented the petitioner in Dastar Corp. v. Twentieth Century Fox Film Corp. (U.S. 2003), in which the Court unanimously held that “origin” in the Lanham Act refers only to tangible goods, not to the contents of creative works.

Professional Involvement

  • Chair, Council of Appellate Lawyers of the American Bar Association, Appellate Judges Conference (2008-2009)
  • Member, Ninth Circuit Advisory Committee on Rules of Practice and Internal Operating Procedures (2023-)
  • Chair, Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference (2009-2012)
  • Arizona Judicial Council, Commission on Technology (2011-2023); Cybersecurity Subcommittee (2016-2023)
  • Chair of the State Bar of Arizona’s Appellate Practice Section (2014-2015), Intellectual Property Section (1989-1994), and E-Commerce & Technology Section (2005-2006)
  • Civil Jury Instructions Committee, State Bar of Arizona (2006-2023)
  • Federalist Society for Law and Public Policy Studies

Community Involvement

  • Past President & Ritual Vice President, Beth El Congregation
  • Co-Founder & Past President, Jewish Tuition Organization

Court Admissions

  • Supreme Court of the United States
  • U.S. Court of Appeals for the Second Circuit
  • U.S. Court of Appeals for the Third Circuit
  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. Court of Appeals for the Seventh Circuit
  • U.S. Court of Appeals for the Ninth Circuit
  • U.S. Court of Appeals for the Tenth Circuit
  • U.S. Court of Appeals for the Eleventh Circuit
  • U.S. Court of Appeals for the Federal Circuit
  • U.S. Court of Appeals for the District of Columbia Circuit
  • U.S. District Court for the District of Arizona
  • U.S. District Court for the Central District of California
  • U.S. District Court for the Eastern District of California
  • U.S. District Court for the Northern District of California
  • U.S. District Court for the Southern District of California
  • U.S. District Courts for the Eastern/Western Districts of Arkansas

Experience

  • Law clerk to the Honorable Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit (1987-1988)

Publications/Presentations

  • Author, Federal Appellate Practice: Ninth Circuit (Thomson Reuters, 2022-2023 ed.)
  • Lead Author, Arizona Trial Handbook (Thomson Reuters, 2022-2023 ed.)
  • Author, "The One-Sentence Oral Argument," Westlaw Today, (Thomson Reuters, February 2022)
  • Author, “Certification of Questions of Law to State Supreme Courts,” Westlaw Today, (Thomson Reuters, June 2021)
  • Chapter Author, Arizona Appellate Handbook 2.0 (State Bar of Arizona 2020 ed.)
  • Author, “Appeals of Merits and Fees: Does the Tail Wag the Dog?,” Appellate Practice (ABA Section of Litigation May 30, 2017)
  • Webinar Presenter, “Appellate Briefing Strategies: Framing the Issue and Drafting the Statement of Facts,” Strafford Publications (April 11, 2023)
  • Webinar Presenter, “Traps for Appellate Out-of-Towners: Differences Among Neighboring State Appellate Practices (West Coast Edition),” American Bar Association (March 29, 2023)
  • Faculty, “Certification of Questions of Law to State Supreme Courts,” Conference of Chief Justices Midyear Meeting, Austin, TX (February 2023)
  • Webinar Presenter, “Mastering the Art of Persuasive Appellate Briefs,” Strafford Publications (September 10, 2020)
  • Webinar Presenter, "Business Interruption Insurance, Captives, and Coronavirus," Dickinson Wright Webinar (April 2020)
  • Webinar Presenter, “Mastering the Art of Writing Persuasive Appellate Briefs: Practical Tips from Past Appellate Law Clerks,” Clear Law Institute (February 28, 2019)
  • Webinar Presenter, “Crossing the Line: When Trademarks and Free Expression Converge…or Conflict,” American Intellectual Property Law Association (January 10, 2018)
  • Faculty, “Enhancing Punitive Damages and Judgments to Their Constitutional Limits,” State Bar of Arizona (December 6, 2017)
  • Faculty, “Ethical Editing in the Age of Shrinking Word Counts,” Appellate Judges Education Institute Appellate Summit, Long Beach, California (November 3, 2017)
  • Presenter, “Disparagement and Scandal: Matal v. Tam and the Registration of Ugly Trademarks,” American Intellectual Property Law Association Annual Meeting, Atlanta, GA (October 19, 2017)
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