Bennett Evan Cooper

• bcooper@steptoe.com
• vCard
• Phoenix Office

201 E. Washington Street
Suite 1600
Phoenix AZ 85004
TEL: 602 257 5217
FAX: 602 452 0920

Ben Cooper is a partner in Steptoe’s Phoenix and Century City offices and a member of the firm’s Appellate Group.  He represents clients as an appellate advocate in federal and state courts across the nation.  He also works with trial counsel on major motion practice and trials in anticipation of appeal, including dispositive motions, class action certification proceedings, evidentiary motions in limine, jury instructions, and post-trial motions.  His practice focuses on appeals in a broad range of substantive fields, including insurance coverage and bad faith defense, taxation, intellectual property and e-commerce, labor and employment, public pension plans, environmental law, professional liability, and other complex civil and constitutional litigation.

Mr. Cooper is the Chair of the Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference, and is a past Chair of the American Bar Association’s Council of Appellate Lawyers, which is part of the ABA’s Appellate Judges Conference.  He is the lead author of the Arizona Trial Handbook (West 2012-2013), which addresses the law of all aspects of civil and criminal trials in Arizona courts, the author of the Arizona chapter in the ABA’s new Appellate Practice Compendium (2012), and a chapter author and member of the editorial board of the Arizona Appellate Handbook (State Bar of Arizona 2011).  In addition, Mr. Cooper is an officer of the Appellate Practice Section of the State Bar of Arizona and a member of its Civil Jury Instructions Committee.

Representative Matters

Insurance and Punitive Damages
Mr. Cooper defends claims against insurers and reinsurers for coverage, breach of contract, bad faith, and abuse of process.  In 2003, he successfully represented the four largest trade associations of property and casualty insurers as amici curiae in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), in which the US Supreme Court overturned a $145-million punitive damages award and established new constitutional guidelines for punitive damages.  The American Prospect magazine noted that the High Court’s “decision … took language right from the American Insurance Association’s amicus curiae (‘friend of the court’) brief.”  Building on Campbell, in 2009 Mr. Cooper persuaded a trial court to reduce a $55-million punitive damages verdict against an insurer to $620,000, and in 2012 convinced the appellate court to reduce the award further to $155,000, reflecting a 1:1 ratio to compensatory damages and a 99.7% reduction. Nardelli v. Metro. Group Prop. & Cas. Ins. Co., 277 P.3d 789 (Ariz. App. 2012). In 2009, he also persuaded an appellate court to vacate or reduce punitive damages verdicts of $740,000 against another insurer to $40,000. Arguing before the Pennsylvania Supreme Court on behalf of an insurer that appeared as an amicus curiaein an insurance-liquidation dispute in place of the actual party, Mr. Cooper was commended by the Court in its opinion for “exceptionally well-crafted, well-researched, and persuasive briefs and arguments.” Ario v. Reliance Ins. Co., 980 A.2d 588, 597 n.6 (Pa. 2009).

Tax
Mr. Cooper handles appeals in a wide variety of federal, state, and local tax disputes, including property, transaction privilege, sales and use, and corporate and partnership income tax, as well as issues of multistate taxation. He has represented clients in such diverse industries as electric utility distribution, newspaper publishing, commercial printing, automobile sales, rental cars, commercial lending, construction, storage, low-income housing development, chemical research and development, and hospitality concessions. In 2012, he represented the National Association of Manufacturers, American Chemistry Council, and Chamber of Commerce of the United States of America as amici curiae in the Second Circuit appeal addressing the scope of the federal research and development tax credit. Union Carbide Corp., — F.3d —, 2012 WL 3870863 (2d Cir. 2012). He also handled appeals in the Ninth Circuit involving white-collar criminal prosecutions and civil RICO claims arising from allegedly fraudulent tax shelters. E.g., United States v. Krane, 625 F.3d 568 (9th Cir. 2010).

With respect to state and local taxation, Mr. Cooper successfully represented Arizona’s largest utility in establishing that customers’ contributions in aid of construction are not included in the utility’s plant-in-service cost for valuation purposes. Ariz. Dep’t of Revenue v. Ariz. Pub. Serv. Co., 126 P.3d 1063 (Ariz. App. 2006). Resolving a long-running dispute between the construction industry and taxing authorities, he persuaded the Arizona Court of Appeals to reverse the Arizona Tax Court and hold that construction managers are not taxable on payments they make as the owners' agents to trade contractors. Ariz. Dep't of Revenue v. Ormond Builders, Inc., 166 P.3d 934 (Ariz. App. 2008). Mr. Cooper also represented a major national commercial printer in establishing that its investment and accounts-receivable factoring subsidiaries were not part of the parent’s unitary business for purposes of multistate apportionment. R.R. Donnelley & Sons Co. v. Ariz. Dep’t of Revenue, 229 P.3d 266 (Ariz. App. 2010).

Intellectual Property & E-Commerce
Mr. Cooper has represented both plaintiffs and defendants in appellate and trial court proceedings involving copyrights, trademarks, trade dress, trade secrets, and patents in a broad range of industries. In 2003, he successfully represented the petitioner in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), in which the US Supreme Court unanimously reversed the Ninth Circuit in holding that “origin” in the Lanham Act refers only to tangible goods, and not to the contents of creative works. Mr. Cooper is a past Chair of both the Intellectual Property Section (1989-1994) and E-Commerce & Technology Section (2005-2006) of the State Bar of Arizona, and in 2011 he was appointed by the Chief Justice of the Arizona Supreme Court to the Arizona Judicial Council’s Commission on Technology.  

Employment, Labor, and Public Pension Plans
Mr. Cooper represents employers in a variety of individual and class-action suits for breach of contract, discrimination, wage-and-hour violations, and other employment and labor issues, and also represents public pension plans, including the Public Safety Personnel Retirement System of the State of Arizona. In 2003, Mr. Cooper successfully argued before the California Supreme Court on behalf of the California Public Employees’ Retirement System as to the enrollment requirement for leased employees, resulting in a 4-3 decision for the retirement system. Metro. Water Dist. v. Superior Court, 84 P.3d 966 (Cal. 2004). In 2004, he defeated certification of a state-wide class action against the nation’s largest retailer for alleged wage-and-hour violations, and later prevailed in obtaining the dismissal of the plaintiffs’ appeal. Osuna v. Wal-Mart Stores, Inc., 2004 WL 3255430 (Ariz. Super. 2004), appeal dismissed, 151 P.3d 1267 (Ariz. App. 2007). He has also successfully represented an employer in establishing a one-year statute of limitations for all employment contract claims, which had been a subject of hot dispute in Arizona. Redhair v. Kinerk, Beal, Schmidt, Dyer & Sethi, P.C., 183 P.3d 544 (Ariz. App. 2008). He later represented a regional airline under the Railway Labor Act in obtaining reversal of a preliminary injunction prohibiting the airline's intended change in applicable Federal Aviation Administration regulations for the scheduling of flight attendants; the court of appeals concluded that the parties' conflict constituted a "minor dispute" subject to the RLA’s exclusive arbitral remedy. Ass’n of Flight Attendants v. Mesa Air Group, Inc., 567 F.3d 1043 (9th Cir. 2009). Mr. Cooper also successfully represented one of the nation’s Class I railroads in the landmark case on apportionment of damages to preexisting physical conditions under the Federal Employers’ Liability Act. Sauer v. Burlington Northern R.R. Co., 106 F.3d 1490 (10th Cir. 1996).

Environmental
Mr. Cooper has handled appeals in a variety of environmental and land use cases. In 2008 and 2009, he represented two Class I railroads in seeking rehearing and reversal of the Ninth Circuit’s adverse decision on the apportionment of cleanup costs under CERCLA; after eight judges dissented from the denial of en banc review, the United States Supreme Court granted certiorari and reversed the Ninth Circuit by an 8-1 vote. United States v. Burlington Northern & Santa Fe Ry. Co., 520 F.3d 918 (9th Cir. 2008), rev’d, 129 S. Ct. 1870 (2009). In 2007, he obtained reversal of a jury verdict against property owners who were seeking to recover from the City of Tucson, Arizona, for damage to historic adobe buildings caused by water leaking from municipal water mains. Rollings v. City of Tucson, 2007 WL 5556969 (Ariz. App. 2007). He also persuaded the Tenth Circuit to reverse the dismissal of a challenge by neighboring landowners to the construction of an overhead transmission line across unspoiled terrain in northern New Mexico, leading to cancellation of the project. County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031 (10th Cir. 2002).

Professional Liability
Mr. Cooper has handled trial and appellate matters involving the professional liability of lawyers, accountants and auditors, brokers, actuaries, and corporate directors and officers. Such matters have involved claims for common-law malpractice, breach of fiduciary duty, abuse of process, aiding and abetting, tortious interference with contract, securities fraud, and RICO violations, raising issues ranging from loss causation and deepening insolvency to application of the Private Securities Litigation Reform Act’s securities-fraud exception. He represented the leading insurance trade associations as amici curiae in establishing the scope of liability in the tripartite relationship, Paradigm Ins. Co. v. Langerman Law Offices, P.A., 24 P.3d 593 (Ariz. 2001), and successfully litigated the effect of court-approved settlements on subsequent malpractice actions against counsel involved in the settlement process, Durkin v. Shea & Gould, 92 F.3d 1510 (9th Cir. 1996).

Complex Civil and Constitutional Litigation
Mr. Cooper has handled appeals and trial court proceedings in a wide variety of complex civil litigation: securities and director and officer liability; antitrust; coal rail transportation agreements and other contracts; and media defamation and other constitutional issues. Successfully representing on a pro bono basis Jewish, Catholic, and Lutheran school tuition organizations and a non-religious school for students with learning differences, he was the only lawyer to file amici curiae briefs in both the Ninth Circuit and the US Supreme Court in support of the constitutionality under the Establishment Clause of Arizona‘s private-school tuition tax credit; the Supreme Court reversed the Ninth Circuit and dismissed the lawsuit attacking the credit. Ariz. Christian School Tuition Org. v. Winn, 131 S. Ct. 1436 (2011).

Noteworthy

• Best Lawyers in America 2011-2013, Appellate Law
• Southwest Super Lawyers 2007-2013, Appellate Law
• "Top 50 Attorneys in Arizona," Southwest Super Lawyers, 2011-2012
• Arizona's Finest Lawyers, 2011
• Martindale-Hubbell “Preeminent AV” Peer Review Rating (5.0/5)
• Member, Ad Hoc Strategic Plan Committee, Commission on Technology of the Arizona Judicial Council, 2012
• Chair, Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference, 2009-2012
• Budget Officer, Appellate Practice Section of the State Bar of Arizona, 2012-2013
• Secretary, Civil Jury Instructions Committee of the State Bar of Arizona, 2011-2012
• Co-Director, Arizona Appellate Practice Institute of the State Bar of Arizona, 2010-2012
• Faculty, 14th National Appellate Practice Institute at Northwestern University Law School (ABA), 2009
• Member, Board of Directors, Phoenix Center Arts Association
• President, Beth El Congregation, Phoenix, Arizona, 2010-2012
• Past President and Co-founder. Jewish Tuition Organization (one of Arizona's largest school tuition organizations)

Select News & Events

• Southwest Super Lawyers Recognizes 14 Steptoe Lawyers
• Law360 Covers Steptoe's Arguments in ‘Red Gold’ Trademark Infringement Case
• Faculty, "Working with the Court of Appeals," State Bar of Arizona, November 9, 2012
• Steptoe Receives 77 Individual Mentions in Best Lawyers 2013
• Southwest Super Lawyers Profiles Steptoe’s Bodney, Recognizes 13 Phoenix Attorneys
• Successfully Navigating the Appeals Process, February 24, 2012, National Business Institute
• The Arizona Republic Quotes Ben Cooper on Public Safety Personnel Retirement System Issue
• Steptoe Receives 67 Individual Mentions from Best Lawyers
• “Reflections of a Fifth Wheel: The Appellate Lawyer on the Trial Team,” Appellate Lawyer as Wingman: The Increasing Use of Appellate Specialists at Trial, November 20, 2010, Appellate Judges Education Institute Summit
• Anatomy of an Appeal: Review and Remand, July 31, 2009, American Bar Association Annual Meeting
• Sixth Annual Construction Tax Issues Seminar - Important Issues in a Distressed Real Estate Market, June 17, 2009, (A Steptoe Sponsored Event)
• "More Effective Appellate Briefs," Legal Writing for Maximum Impact, February 27, 2008, National Business Institute

Selected Publications

• Steptoe's Response to Multistate Tax Commission Amicus Brief on Uniformity Issue
  Steptoe Rebuts MTC's Argument That Policy of Uniformity Should Override Clear Language of Arizona's Version of UDITPA
  September 10, 2012
• The Appellate Practice Compendium
  Council of Appellate Lawyers
  August 2012, American Bar Association
• Reflections of a Fifth Wheel: The Appellate Lawyer on the Trial Team
  August 2011
• The Arizona Trial Handbook (West 2010-2011)
• Litigating About Litigation: Can Insurers be Liable for too Vigorously Defending their Insureds?
  Spring 2007, Tort Trial & Insurance Practice Law Journal
• What Appellate Lawyers Want (or Respectfully Hope For), October 1, 2005

Professional Affiliations

• Member, American Bar Association
• Member, Federalist Society for Law & Public Policy Studies