Bennett Evan Cooper

Member

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 also emphasizes both trial-court and appellate representation in such fields as intellectual-property protection and e-commerce disputes; federal, state, and local taxation; insurance coverage and bad-faith defense; and public pension plans. 

In the U.S. Court of Appeals for the Ninth Circuit, which includes nine western states, Ben is the author of Thomson Reuters’s 1200-page treatise Federal Appellate Practice: Ninth Circuit, and served as the court-appointed chair of the Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference. He previously served 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
  • cum laude
  • Winner, Ames Moot Court Competition

Harvard University

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

Bar Admission

  • Arizona1986
  • California1987

Acknowledgements

  • Best Lawyers in America
    • “Phoenix Lawyer of the Year 2019 – Appellate Practice”
    • Appellate Practice (2010-present)
    • Insurance Law (2018-present)
    • Bet-the-Company Litigation (2019-present)
  • Southwest Super Lawyers
    • Appellate Law (2007-present)
  • Martindale-Hubbell rating of AV Preeminent Judicial Edition
 

Prominent Assignments

  • 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.
  • Represented, on pro bono basis, Jewish, Catholic, and Lutheran school tuition organizations 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). 
  • Persuaded the Ninth Circuit to affirm the dismissal of a coverage action against a D&O insurer for $9 million in the costs of five shareholder class actions. AMERCO v. National Union (9th Cir. 2016).
  • 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).
  • Represented The Internet Association as amicus curiae before the Ninth Circuit in Earll v. eBay, Inc. (9th Cir. 2015), establishing that an Internet website was not a “place of public accommodation” for purposes of the Americans with Disabilities Act.”
  • Successfully established that newspaper-production software was eligible for the state machinery-and-equipment transaction-privilege-tax exemption 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 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).
  • 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).

Professional Involvement

  • Chair, Council of Appellate Lawyers of the American Bar Association, Appellate Judges Conference (2008-2009)
  • Chair, Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference (2009-2012)
  • Arizona Judicial Council, Commission on Technology (2011-2019); Cybersecurity Subcommittee (2016-2019)
  • 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 (2006-2019)
  • Federalist Society for Law and Public Policy Studies

Community Involvement

  • Past President & Current Ritual Vice President, Beth El Congregation
  • Co-Founder & Past President, Jewish Tuition Organization
  • Jewish Committee on Scouting, Grand Canyon Council, Scouts BSA
  • Past Vice President for Education, The King David School

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 2018-2019 ed.)

Lead Author, Arizona Trial Handbook (Thomson Reuters 2018-2019 ed.)

Author, “Appeals of Merits and Fees: Does the Tail Wag the Dog?,” Appellate Practice (ABA Section of Litigation May 30, 2017)

Chapter Author, Arizona Appellate Handbook (State Bar of Arizona 2017 ed.)

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, “Mastering the Art of Persuasive Appellate Briefs,” Strafford Publications (September 13, 2018)

Webinar Presenter, “Crossing the Line: When Trademarks and Free Expression Converge … or Conflict,” American Intellectual Property Law Association (AIPLA) (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,” AIPLA Annual Meeting, Atlanta, Georgia (October 19, 2017)
 
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