Stephen R. Smerek



Stephen R. Smerek is a partner and litigation lawyer with Foley & Lardner LLP. As a first-chair trial attorney, Stephen's practice focuses on patent litigation, particularly representing pharmaceutical manufacturers in ANDA cases, consumer class action litigation, including cases in the automotive, cosmetics, food and beverage, and banking industries, and other complex commercial litigation matters in California and throughout the United States. For more than 25 years, Stephen has represented a vast spectrum of clients from international pharmaceutical companies and well-known manufacturers and retailers to significant niche and local businesses. In addition to litigating cases in federal and state trial courts in more than a dozen states across the country, Stephen has successfully argued multiple appeals, including cases before the Federal Circuit and 9th Circuit.

Stephen has achieved substantial success resolving litigation matters for clients through strategic settlements, dispositive motions, at trial, and on appeal. Stephen has extensive trial experience, in both bench and jury trials, throughout the United States, including California, Delaware, and Texas.

Representative Matters

  • First-chaired a complex ANDA pharmaceutical patent matter in the Eastern District of Texas for InnoPharma, a subsidiary of Pfizer, successfully invalidating three patents asserted by Allergan for infringement of its blockbuster drug Restasis®. This matter was handled prior to joining Foley.
  • Defended a global luxury goods retailer in a putative nationwide consumer class action accusing one of its subsidiaries of false and misleading advertising. After convincing the district court to dismiss the plaintiffs’ case with prejudice, Mr. Smerek successfully defended that victory in the 9th Circuit, which issued a significant precedential opinion reaffirming the “reasonable consumer” standard. This matter was handled prior to joining Foley.
  • Obtained summary judgment defeating patent infringement claims against a major California-based bank, and then argued and won the Federal Circuit appeal invalidating the sole patent asserted against his client and conclusively ending the matter. This matter was handled prior to joining Foley.
  • Part of trial team, and responsible for damages presentation in the $1 billion patent infringement jury verdict on behalf of Monsanto in Monsanto Co. v. E.I. duPont de Nemours & Co. That victory was recognized as the number-three verdict in The National Law Journal’s Top 100 Verdicts of 2012. This matter was handled prior to joining Foley.


  • Recognized in the 2018 edition of The Legal 500 U.S. for Dispute Resolution, including product liability, mass tort, and class action: Consumer Products.
  • Nominated by LMG Life Sciences for Hatch-Waxman Litigator of the Year – Generic (2017), and as a “Life Sciences Star” (2017, 2018 and 2019).
  • Awarded the Disability Rights Award by the ACLU Foundation of Southern California, and received a Pro Bono Service Award by the Disability Rights Legal Center, for his work in connection with a pro bono class action on behalf of disabled inmates in the Los Angeles County jail system (2015).
  • Repeatedly recognized as a Southern California “Rising Star” and “Super Lawyer” by Los Angeles Magazine.

Education and Clerkship

  • Boston University School of Law (J.D., summa cum laude, 1993), served as topic and book review editor for the Boston University Law Review and received several academic awards, including the Dr. John Ordronaux Prize and the Alumni Academic Achievement Award
  • Indiana University (B.A., with distinction, 1990), a member of Phi Beta Kappa
  • U.S. District Court - District of Massachusetts for the Honorable Joseph L. Tauro


  • California
  • Massachusetts
  • Central District of California, Eastern District of California, Southern District of California, Northern District of California, District of Massachusetts, USCA - 1st Circuit, USCA - 3rd Circuit, USCA - 9th Circuit, USCA - Fed. Circuit

Selected Publications

  • Author - “Potential Class Cert. Pitfalls Lurking in Local Rules,” Law360 (March 28, 2017)
  • Quoted - “Consumer Class Actions Survive Brush with High Court,” Law360 (June 29, 2012)
  • Quoted - “Supreme Court Declines Opportunity to Rule in Title Insurance Dispute” regarding the First American Financial Corp. v. Edwards case, Westlaw Journal (June 29, 2012)
  • Co-author - “Supreme Court Considers Limits on Article III Standing in First American Corp. v. Edwards,” Westlaw Journal Class Action (December 2011)
  • Co-author - “Justices Issue Plaintiff-Friendly Class Action Decision,” Los Angeles Daily Journal (June 2011, co- author)
  • Co-author - “Extraterritorial Application of United States Law After Morrison v. National Australia Bank,” Dispute Resolution International (May 2011)
  • Co-author - “When Do Money Damages Predominate in a Class Action for Injunctive Relief: Keeping Dukes in Perspective,” Westlaw Journal Class Action (October 2010)
  • Co-author - “The Long Arm of the Law: Morrison, Dodd-Frank, and the Extraterritorial Reach of U.S. Regulators,” BNA Securities Regulation & Law Reporter (October 4, 2010)
  • Co-author - “Nerve Center Test Key to Federal Courts,” Los Angeles Daily Journal (March 8, 2010)

Selected Speaking Engagements

  • “When Good Contracts Go Bad: Contracts from a Litigator’s Perspective,” Guest Lecturer, Regulatory Science, Medical Products and the Law, USC School of Pharmacy (November 2016)
  • “The Intersection of 17200 & Class Actions,” 12th Annual Class Action Litigation Conference, Bridgeport Continuing Education, Los Angeles, CA (April 2012)
  • “Class Action Litigation 101,” National Business Institute, Webcast (January 2012)
  • “Expert Testimony at the Time of Class Certification,” Consumer Class Action Conference, Bridgeport Continuing Education, La Jolla, CA (January 2011)