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.
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- cum laude
- Executive Editor, Harvard Journal of Law & Public Policy
- President, Harvard Society for Law & Public Policy
- Winner, Ames Moot Court Competition
Harvard University
A.B., 1983- magna cum laude in Government
Bar Admission
Acknowledgements
- The Legal 500 United States
- Dispute Resolution, General Commercial Disputes
- Chambers USA, America's Leading Lawyers for Business
- Commercial Litigation, Appellate
- Intellectual Property, 2024
- Litigation, Appellate
- Best Lawyers in America®
- “Lawyer of the Year," Appellate Practice, Phoenix, 2019
- Appellate Practice 2010-2025
- Insurance Law 2018-2025
- "Bet-the-Company," Litigation 2019-2025
- Southwest Super Lawyers®
- Appellate Law, 2007-2024
- Top 50: Arizona Super Lawyers, 2011-2012, 2023
- Martindale-Hubbell® rating of AV Preeminent® Judicial Edition
Prominent Assignments
U.S. Supreme Court
- Currently representing before the U.S. Supreme Court the owner of power plant constructed on leased reservation trust lands in challenging, on express and implied federal Indian preemption grounds, state and local property taxes imposed on the plant.
- In March 2023, argued before the U.S. Supreme Court in Jack Daniel’s Properties, Inc. v. VIP Products LLC (U.S. 2023), which established new standards for evaluating trademark infringement claims against parody products.
- 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).
- 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.”
- Succeeded in convincing the U.S. Supreme to reverse circuit precedent and unanimously hold that “origin” in the Lanham Act refers only to tangible goods, not to the contents of creative works. Dastar Corp. v. Twentieth Century Fox Film Corp. (U.S. 2003).
Insurance
- Convinced the Colorado Supreme Court to reverse the court of appeals and hold that a specialty classic automobile policy may limit underinsured-motorist coverage to persons injured while occupying the insured classic car. Essentia Insurance Co. v. Hughes (2024).
- 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 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); Gracial Cryotherapy, LLC v. Evanston Insurance Company (9th Cir. 2022); Schleicher and Stebbins Hotels, LLC v. Starr Surplus Lines Insurance Co. (N.H. 2023); Precious Treasures LLC v. Markel Insurance Co. (N.J. Super. App. Div. 2022).
- Persuaded the Ninth Circuit in AMERCO v. National Union (2016) to affirm the dismissal of a coverage action against a D&O insurer for $9 million in the cost of five shareholder class actions.
- 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).
Intellectual Property
- Successfully represented a leading producer of rolling papers and smoking accessories before the Ninth Circuit, which reversed the district court’s grant of summary in a trademark infringement action and recognized that district courts have jurisdiction to cancel pending applications to register marks. BBK Tobacco & Foods LLP v. Central Coast Agriculture, Inc. (2024).
Tax
- Successfully represented a low-income housing tax credit developer in establishing the proper tax valuation standards for LIHTC properties. Maricopa County v. Viola (Ariz. App. 2021).
- 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).
Other Appeals
- Bringing to a close a 50-year-old school desegregation case, persuaded the Ninth Circuit to affirm the district court’s grant of unitary status to a major Arizona metropolitan school district. Mendoza v. Tucson Unified School District No. 1 (2025).
- Convinced the Eleventh Circuit to reverse the district court and hold that, under Florida’s version of the Uniform Commercial Code, a drawee bank’s improper acceptance of a joint check endorsed by only one co-payee discharged the liability of the insurer that issued the check. VFS Leasing Co. v. Markel American Insurance Company (2024).
- 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)
- 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. Courts of Appeals for the Second, Third, Fourth, Fifth, Seventh, Ninth, Tenth, Eleventh, Federal, and District of Columbia Circuits
- U.S. District Court for the District of Arizona
- U.S. District Courts for the Central, Eastern, Northern, and Southern Districts of California
- U.S. District Courts for the Eastern and 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, 2023-2024 ed.)
- Lead Author, Arizona Trial Handbook (Thomson Reuters, 2023-2024 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, “Effective Appellate Briefs: How Appellate Judges Read Briefs and Decide Cases, and How to Give Them What They Want,” Strafford Publications (Oct. 19, 2023)
- Webinar Presenter, “Mallory v. Nortfolk Southern: Due Process and Requiring Out-of-State Firms to Consent to Personal Jurisdiction,” Strafford Publications (Aug. 29, 2023)
- 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)