David C. Frederick

May 21,  2024— Chinese state-owned enterprise Irico Group Corporation and its subsidiary Irico Display Devices Co. face a potential default judgment for more than $2.4 billion in a long-running price-fixing lawsuit brought by classes of American purchasers of cathode ray tubes.  Special Master Vaughn R. Walker, appointed by U.S. District Judge Jon S. Tigar, recommended the default judgment as a sanction for discovery misconduct. The Special Master’s report and recommendation found that Irico’s misconduct over the course of the litigation showed “contempt for th[e] court,” “defied the basic responsibilities of a civil litigant in the United States,” and reflected a “malign strategy” under which “evidence . . . grew stale” and “Irico’s own witnesses . . . disappeared.”  The report included a litany of specific examples including failures to preserve and spoliation of both electronic and physical evidence, false representations to the court, an appeal that delayed the litigation for a year, and failures to produce key witnesses.  It concluded that no sanction less than a default judgment would suffice as a remedy. Judge Tigar will now consider whether to adopt the Special Master’s report and recommendation.  If that occurs, Irico will be required to pay plaintiffs’ attorneys’ fees, and the court will determine the total damages due. The direct purchaser class of plaintiffs is represented by R. Alexander Saveri, Geoffrey C. Rushing, Matthew D. Heaphy and David Y. Hwu of Saveri & Saveri Inc.; Steven F. Benz, Gregory G. Rapawy, and Robert C. Klipper of Kellogg Hansen Todd Figel & Frederick PLLC.  The indirect purchaser class of plaintiffs is represented by Mario N. Alioto and Lauren C. Capurro of Trump Alioto Trump & Prescott LLP; and Joseph W. Cotchett, Adam J. Zapala, James Gerard Beebe Dallal, and Imtiaz A. Siddiqui of Cotchett Pitre & McCarthy LLP. The case is In re Cathode Ray Tube (CRT) Antitrust Litigation, MDL No. 1917, No. 4:07-cv-05944, in the U.S. District Court for the Northern District of California. ..

April 16, 2024— In a case highlighted by Law360’s Petition Watch, Kellogg Hansen client Living Essentials has asked the Supreme Court to clarify what a private plaintiff must prove to win a “secondary line” price discrimination case under the Robinson-Patman Act.  At trial, Living Essentials persuaded both a jury and the court to reject claims that it had violated the Act by offering Costco lower prices to buy its popular energy shots, 5-hour ENERGY®, than it had offered to certain wholesalers.  The district court explained that the wholesalers could not show they competed with Costco for the same customers, as required by Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006).  But a fractured panel of the Ninth Circuit, breaking from the decisions of other courts of appeals, held Volvo inapplicable.  The petition urges the Court to grant review because the decision “invites litigation that will punish the price competition that antitrust law aims to encourage.” Living Essentials, LLC and its parent company, Innovation Ventures, LLC, are represented by Kellogg Hansen attorneys David C. Frederick, Daniel G. Bird, Collin R. White, and Kyle C. Bailey. Read more in this report by Law360. ..

May 1, 2023— Twenty-seven Kellogg Hansen attorneys qualified for recognition on the 2022 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel.  Nineteen Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service.  The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011.  The complete list of 2022 honorees can be found here. Kellogg Hansen 2022 Capital Pro Bono Honor Roll Scott K. Attaway* Daniel G. Bird* L. Vivian Dong Daniel V. Dorris Matthew N. Drecun Ryan M. Folio David C. Frederick* D. Chanslor Gallenstein* Dustin G. Graber Kimberly V. Hamlett* Minsuk Han* Ashle Holman* Geoffrey M. Klineberg* Jonathan I. Liebman Eric J. Maier* Samuel A. Martin* Ariela M. Migdal Bradley E. Oppenheimer* Gregory G. Rapawy* Catherine M. Redlingshafer Derek C. Reinbold* Caroline A. Schechinger* Daniel S. Severson* Andrew C. Shen* Julius P. Taranto* Alex P. Treiger* Matthew J. Wilkins*  * denotes High Honor Roll ..

January 4, 2022— The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the families of 395 Americans killed or injured by the terrorist group Jaysh al-Mahdi in Iraq.  In this U.S. Anti-Terrorism Act (ATA) case against major pharmaceutical and medical-supply corporations, the federal appellate court held that the plaintiffs’ allegations stated a claim under the ATA.  The plaintiffs are more than 1,200 Americans, who were attacked or who had a family member attacked by the terrorist group Jaysh al-Mahdi. Among the plaintiffs are more than 180 families who lost a loved one.  The defendants are the parent companies and/or subsidiaries of AstraZeneca, GE Healthcare, Johnson & Johnson, Pfizer, and Roche.  The plaintiffs allege that these companies bribed Iraqi terrorists to obtain contracts from Iraq’s terrorist-controlled Ministry of Health, knowingly financing terrorist attacks on Americans. Kellogg Hansen is plaintiffs\' trial and appellate counsel, serving as lead counsel in the courtroom.  Partner Josh Branson argued the appeal for the plaintiffs and was joined on the brief by partners David Frederick and Andrew Goldsmith.  Partners Thomas Schultz and Matthew Duffy and associate Grace Knofczynski have also been instrumental in several stages of the litigation.  The appeal received support from an impressive collection of amici, who were cited by the D.C. Circuit several times in the opinion.  A bipartisan group of eight U.S. Senators, led by Senators Grassley and Blumenthal, submitted a brief explaining why Congress enacted the ATA and describing how Defendants’ arguments defied Congress’s intent.  A group of retired U.S. military commanders also submitted a brief detailing Hezbollah’s role in planning and authorizing Jaysh al-Mahdi’s attacks.  Other effective briefs were authored by Professor Steve Vladeck and other national-security law professors, a group of anti-corruption experts, and the American Association for Justice. The lawsuit follows an extensive investigation by Kellogg Hansen and the Washington, D.C.-based law firm Sparacino PLLC.  Throughout the case, the Sparacino team has been Kellogg Hansen’s partner, serving as lead investigative counsel. Case Caption:  Atchley v. AstraZeneca, No. 20-2077 (D.C. Cir. Jan. 4, 2022). ..

May 20, 2019— Pharmaceutical manufacturers can no longer try to establish preemption based on speculation about what the U.S. Food and Drug Administration (FDA) would have done in hypothetical situations. In Merck v. Albrecht, the U.S. Supreme Court concluded that “a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both.” The Court held that “clear evidence” preemption requires an FDA action with the force of law that prohibits the manufacturer from adding an adequate warning. Kellogg Hansen partner David Frederick argued the case for the Fosamax plaintiffs. He was joined on the brief by Kellogg Hansen partner Brendan Crimmins and associate Jeremy Newman. Mr. Frederick issued the following statement on the opinion:  “This opinion protects access to justice for injured patients. It reaffirms Wyeth, which ensured patients can hold drug companies accountable when they fail to warn about side effects, and it provides the clarification the Third Circuit requested. Further, the opinion makes clear that preemption can be established only by a formal FDA action prohibiting the manufacturer from changing its warning label to add any adequate warning under state law.”  The Court also held that the “clear evidence” preemption issue is for the judge, not the jury.  Because the Third Circuit had held that a jury should decide the question, the Supreme Court vacated the Third Circuit’s opinion and remanded for the Third Circuit to decide Merck’s preemption defense under the legal standards announced by the Court. The case is Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290 (U.S.). ..

May 13, 2019— The United States Supreme Court ruled in favor of Kellogg Hansen’s clients in one of the most significant victories for private antitrust plaintiffs in the Court’s recent history, Apple Inc. v. Pepper, et al. In a 5-4 decision, the Supreme Court found that iPhone owners may sue Apple as direct purchasers under § 4 of the Clayton Act and Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), for monopolizing the market for iPhone apps.  The Court noted that “[t]he plaintiffs seek to hold retailers to account if the retailers engage in unlawful anticompetitive conduct that harms consumers who purchase from those retailers.  That is why we have antitrust law.”  The ruling affirmed the January 2017 opinion of the U.S. Court of Appeals for the Ninth Circuit, which held that “Plaintiffs are direct purchasers from Apple within the meaning of Illinois Brick and therefore have standing.” The Kellogg Hansen team included partners David Frederick, Aaron Panner, and Gregory Rapawy, and associate Benjamin Softness. Mr. Frederick argued on behalf of the consumers before the Supreme Court, and issued the following statement about the opinion: “We’re gratified the Supreme Court today recognized the right of consumers to sue Apple for the damages they sustain from Apple’s monopoly control over the distribution of applications on iPhones. The decision is important for upholding consumer protections against the dangers of monopoly retailers like Apple.  Apple’s monopoly control has distorted the prices for apps and it’s time for that abuse of monopoly power to end.”   The case is Apple Inc. v. Pepper, et al., No. 17-204 (U.S.). ..

April 16, 2019— Thirty-two Kellogg Hansen attorneys qualified for recognition on the 2018 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel.  Twenty-five Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service.  The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011.  The 2018 Honor Roll members represent all sectors of the legal community, including 168 law firms and individual practices, as well as federal and local government agencies, corporations, associations, law schools and public interest organizations. Chief Judge Anna Blackburne-Rigsby of the District of Columbia Court of Appeals and Chief Judge Robert Morin of the Superior Court of the District of Columbia stated: “We salute you for using your talents and expertise to help those unable to afford an attorney, to ensure that they too have equal access to justice. Your compassion and dedication, as evidenced by your pro bono service, have helped to level the playing field.”  Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. Scott K. Attaway*Christine A. Bonomo*Katherine C. Cooper*Brendan J. CrimminsMatthew M. DuffyLinda A. Elliott*David C. Frederick*Andrew E. Goldsmith*Daniel S. Guarnera*Joshua HafenbrackFrederick G. Hall*Minsuk Han*Jacob E. HartmanAndrew M. Hetherington*T. Dietrich HillMark P. Hirschboeck*Geoffrey M. Klineberg*Benjamin D. Margo*Rachel P. May*Ariela Migdal*Jeremy S. NewmanBradley E. Oppenheimer*Albert Y. Pak*Michael S. Qin*Benjamin L. Rudofsky*Thomas B. Samuels*Christopher M. SarmaThomas G. Schultz*Daniel S. Severson*Lillian V. Smith*Benjamin S. Softness*Julius P. Taranto* * denotes High Honor Roll ..

March 26, 2018— Today, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. partner David Frederick delivered his 50th oral argument before the United States Supreme Court in China Agritech, Inc. v. Michael Resh, et al., No. 17-432. Mr. Frederick has won or settled cases in the Supreme Court thirteen years in a row including, most recently, Tyson Foods v. Bouaphakeo, Tibble v. Edison Int’l, Jesinoski v. Countrywide Home Loans, Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, Pacific Operators v. Valladolid, CSX v. McBride, Matrixx v. Siracusano, Jones v. Harris Associates, Merck v. Reynolds, Wyeth v. Levine, and Altria v. Good. He has represented individuals, investors, immigrants, classes of consumers, farmers, Native Americans, small corporations, trade associations, large companies, foreign governments, states (Alaska, Delaware, South Carolina, Tennessee, and Vermont), the United States, and the European Community. Mr. Frederick has also argued more than 50 appeals in federal courts, and has served as lead counsel in a wide range of high-stakes, complex litigation. He continues to successfully represent NCUA in claims arising from the sale of faulty mortgage-backed securities. Following his win in the 9th Circuit holding that NCUA’s claims against the Royal Bank of Scotland (RBS) were timely filed, RBS agreed to a settlement of $1.1 billion. Under his leadership as lead counsel, and after winning five appeals in four different circuit courts, NCUA has recovered more than $5.1 billion from Wall Street banks in cases arising out of the financial crisis. A former law clerk to Justice Byron White and Judge Joseph Sneed, Mr. Frederick graduated from the University of Texas School of Law (J.D., with honors); the University of Oxford (D.Phil.), where he was a Rhodes Scholar; and the University of Pittsburgh (B.A., summa cum laude), where he was a Truman Scholar. He served in the Department of Justice as Assistant to the Solicitor General (1996-2001) and as Counselor to the Inspector General (1995-1996). Mr. Frederick has authored three books and numerous articles on appellate advocacy and the Supreme Court. SUPREME COURT CASES ARGUED China Agritech, Inc. v. Michael Resh, et al., No. 17-432 Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466 Universal Health Services v. U.S. ex rel. Escobar, 136 S. Ct. 1989 (2016) RJ Reynolds v. European Commission, 136 S. Ct 2090 (2016) Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (2016) Tyson Foods Inc. v. Bouaphakeo, 135 S. Ct. 2806 (2015) Tibble v. Edison International, 135 S. Ct. 1823 (2015) Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015) American Broadcasting Companies v. Aereo, 134 S. Ct. 2498 (2014) Mutual Pharmaceutical Co. v. Karen Bartlett, 133 S. Ct. 2466 (2013) The Standard Fire Insurance Company v. Greg Knowles et al., 133 S. Ct. 1345 (2013) Amgen Inc., et al. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184 (2013) Fane Lozman v. The City of Riviera Beach, Florida, 133 S. Ct. 735 (2013) Gloria Gail Kurns et al. v. Railroad Friction Products Corporation, et al., 132 S. Ct. 1261 (2012) Pacific Operators Offshore, LLP, et al. v. Luisa L. Valladolid, et al., 132 S. Ct. 680 (2012) CSX Transportation Inc. v. McBride, 131 S. Ct. 2630 (2011) Astra USA Inc. v. County of Santa Clara, 131 S. Ct. 1342 (2011) Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011) Janus Capital Group Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011) Bruesewitz v. Wyeth, 131 S. Ct. 1068 (2011) Kawasaki Kisen Kaisha, Ltd.. et al. v. Regal-Beloit Corporation,130 S. Ct. 2433 (2010) Merck v. Reynolds, 559 U.S. 633 (2010) Jones v. Harris Associates, 559 U.S. 335 (2010) South Carolina v. North Carolina, 558 U.S. 256 (2010) 14 Penn Plaza v. Pyett, 556 U.S. 247 (2009) Wyeth v. Levine, 555 U.S. 555 (2009) Altria v. Good, 555 U.S. 70 (2008) Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) New Jersey v. Delaware, 552 U.S. 597 (2008) Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2007) Watson v. Philip Morris Cos., 551 U.S. 142 (2007) Kircher v. Putnam Funds Trust, 547 U.S. 633 (2006) Anza v. Ideal Steel, 547 U.S. 451 (2006) Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006) Lincoln Prop. Co. v. Roche, 546 U.S. 81 (2005) Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005) Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005) Norfolk Southern Ry. v. James N. Kirby Pty Ltd., 543 U.S. 14 (2004) Idaho v. United States, 533 U.S. 262 (2001) Director of Revenue v. CoBank ACB, 531 U.S. 316 (2001) Central Green Co. v. United States, 531 U.S. 425 (2001) Carter v. United States, 530 U.S. 255 (2000) United States v. Locke, 529 U.S. 89 (2000) NASA v. Federal Labor Relations Auth., 527 U.S. 229 (1999) California Pub. Employees’ Retirement Sys. v. Felzen, 525 U.S. 315 (1999) Mosley v. United States, 525 U.S. 120 (1998) Lewis v. Brunswick Corp., 523 U.S. 1113 (1998) California v. Deep Sea Research, 523 U.S. 491 (1998) United States v. Ramirez, 523 U.S. 65 (1998) Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997) ..

January 1, 2018— Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. take pleasure in announcing that Daniel Dorris and Leslie Pope have become partners in the firm, Linda Elliott has joined the firm as of counsel, and twelve federal judicial clerks have joined as associates.  Daniel Dorris joined the firm as an associate in 2012.  Daniel has particular experience with antitrust and securities cases, multi-district litigation, and class actions.  He represented the National Credit Union Administration in a series of lawsuits regarding the sale of residential mortgage-backed securities.  He also recently briefed and argued an appeal regarding the settlement of a multi-district litigation regarding overpayments for motor fuel.  Leslie Pope joined the firm as an associate in 2012. She represents plaintiffs and defendants in complex, commercial litigation and has substantial experience trying high-stakes matters for clients in both federal and state courts.  Leslie was part of trial teams that successfully represented a client in Texas state court in a case involving high-yield debt and that achieved the first-ever royalty rate decrease from the Copyright Royalty Board for broadcasters that offer online radio services.  Leslie also represented the National Credit Union Administration in a series of lawsuits regarding the sale of residential mortgage-backed securities.   Kellogg Hansen was founded on the idea that talent, creativity, and hard work achieve the best results for clients. The firm has grown over the past 24 years – with each year proving this founding principle holds true. Nearly all Kellogg Hansen attorneys graduated from top-tier law schools and served as law clerks for federal judges. Our highly credentialed and motivated lawyers offer businesses, individuals, and governments expert counsel and innovative solutions to complex disputes and high-stakes matters. PARTNERS DANIEL V. DORRIS  Admitted to bar, 2011, Illinois; 2013, District of Columbia.  Education:  University of Illinois (B.S., summa cum laude, 2006); University of Chicago Law School (J.D., with high honors, 2010).  Order of the Coif.  John M. Olin Law & Economics Fellow.  Kirkland & Ellis Scholar.  Executive Topics & Comments Editor, University of Chicago Law Review, 2009-2010.  Law Clerk:  Hon. Pamela Rymer, U.S. Court of Appeals, Ninth Circuit, 2010-2011; Hon. Gary Feinerman, U.S. District Court, Northern District of Illinois, 2011-2012. LESLIE V. POPE  Admitted to bar, 2010, Virginia; 2013, District of Columbia.  Education:  Harvard College (A.B., cum laude, 2006); Cambridge University (M.Phil., Philosophy, 2007); Yale Law School (J.D., 2010). Managing Editor, Yale Law Journal, 2009-2010.  Law Clerk:  Hon. Judith W. Rogers, U.S. Court of Appeals, District of Columbia Circuit, 2011-2012.  Languages:  Spanish.  OF COUNSEL LINDA A. ELLIOTT  Admitted to bar, 1988, District of Columbia. Education: Kalamazoo College (B.A., 1981), University of Michigan Law School (J.D., 1986), Georgetown University Law Center (Prettyman Fellow 1988-1990, LL.M., 1992). Editor-In-Chief, Michigan Yearbook of International Legal Studies, 1986-87. Law Clerk: Hon. Douglas W. Hillman, U.S. District Court, Western District of Michigan, 1986-1988; Hon. Harry T. Edwards, U.S. Court of Appeals, D.C. Circuit, 2003-2008, 2015-2016. Staff Attorney, Public Defender Service for the District of Columbia, 1990-1997. Deputy Circuit Executive, U.S. Court of Appeals, D.C. Circuit, 1998-2000. Special Counsel for Legal Affairs, U.S. Court of Appeals, D.C. Circuit, 2001-2003. Visiting Professor of Law, University of Peking School of Transnational Law, Shenzhen, China, 2009-present. Adjunct Professor of Law, New York University School of Law, 2007-2017. Co-Author: Federal Standards of Review: Review of District Court Decisions and Agency Actions (Thomson Reuters, 3d ed. 2018) (2d ed. 2013) (1st ed. 2008) (with Hon. Harry T. Edwards). ASSOCIATES CHRISTINE A. BONOMO Admitted to bar, 2015, New York; 2016, District of Columbia. Education: Kenyon College (B.A., summa cum laude, 2011); University of Chicago Law School (J.D., with Honors, 2014). Articles Editor, The Chicago Journal of International Law, 2013-2014. Phi Beta Kappa. Law Clerk: Hon. Peter J. Messitte, U.S. District Court, District of Maryland, 2015-2016; Hon. Deborah L. Cook, U.S. Court of Appeals, Sixth Circuit, 2016-2017. Author: Case Studies in the Advancement of Sexual Orientation Rights: Argentina and Brazil, The Chicago Journal of international Law, Volume 14.1. KEVIN D. HORVITZ  Admitted to bar, 2017, New York; (admitted only in New York; supervision by partners of the firm). Education: Vanderbilt University (B.A., 2013); Duke University School of Law (J.D./LL.M., magna cum laude, 2016). Order of the Coif. Law Clerk: Hon. Gerald Bard Tjoflat, U.S. Court of Appeals, Eleventh Circuit, 2016-2017. Author: An Unreasonable Ban on Reasonable Competition: The Legal Profession’s Protectionist Stance Against Noncompete Agreements Binding In-House Counsel, 65 Duke L.J. 1007 (2016). KYLIE C. KIM Admitted to bar, 2015, New York; 2017, District of Columbia. Education: Ewha W. University (B.A., magna cum laude, 2011); Harvard Law School (J.D., 2014). Article Editor, Harvard Environmental Law Review, 2012-2013; Member, Harvard Environmental Law Moot Court Team, 2012-2013; Executive Online Editor, Harvard International Law Journal, 2013-2014; Captain, Willem C. Vis International Commercial Arbitration Moot Team, 2013-2014; Supreme Court Moot Director, American Constitution Society, 2013-2014; Founder and President, Harvard International Juris Doctor Students Society, 2013-2014. Law Clerk: Hon. Steven D. Merryday, U.S. District Court, Middle District of Florida, 2014-2016; Hon. Charles R. Wilson, U.S. Court of Appeals, Eleventh Circuit, 2016-2017. Languages: Korean.  ROBERT C. KLIPPER  Admitted to bar, 2016, Maryland; 2018, District of Columbia. Education: Yale University (B.A., magna cum laude, 2011); Yale Law School (J.D., 2016). Phi Beta Kappa. Editor, Yale Law Journal, 2015-2016. Law Clerk: Hon. Pamela Harris, U.S. Court of Appeals, Fourth Circuit, 2016-2017. Languages: Mandarin.  GRACE W. KNOFCZYNSKI  Admitted to bar, 2016, Pennsylvania; (admitted only in Pennsylvania; supervision by partners of the firm). Education: University of Tulsa (B.S., magna cum laude, B.A. magna cum laude, 2013); University of Pennsylvania Law School (J.D., summa cum laude, 2016). Phi Beta Kappa. Order of the Coif. Associate Editor, University of Pennsylvania Law Review, 2014-2015. Senior Editor, University of Pennsylvania Law Review, 2015-2016. Law Clerk: Hon. A. Raymond Randolph, U.S. Court of Appeals, D.C. Circuit, 2016-2017  ALBERT PAK Admitted to bar, 2017, New York; (admitted only in New York; supervision by partners of the firm). Education: Stanford University (B.A., M.A., 2013); Yale Law School (J.D., 2016). Phi Beta Kappa. Lead Editor, Yale Journal on Regulation, 2014-2015. Managing Editor, Yale Journal of International Law, 2015-2016.   Law Clerk: John M. Rogers, U.S. Court of Appeals, Sixth Circuit, 2016-2017. Author: Book Note, reviewing Joel P. Trachtman, The Future of International Law: Global Government (2013), 39 Yale Journal of International Law 198 (2014). Languages: Korean. ALEX A. PARKINSON  Admitted to bar, 2016, New York; 2018, District of Columbia. Education: Harvard University (B.A., 2011); The University of Chicago Law School (J.D., with high honors, 2015). Staff Editor, University of Chicago Law Review, 2013-2014. Editor in Chief, University of Chicago Law Review, Vol. 82, 2014-2015. Law Clerk: Hon. Robert D. Sack, U.S. Court of Appeals, Second Circuit, 2016-2017. Author: Class Actions as Firms, 2017 Columbia Business Law Review 740; Behavioral Class Action Law, 65 UCLA Law Review (forthcoming); Comment, Comcast Corp. v. Behrend and Chaos on the Ground, L81 University of Chicago Law Review 1213 (2014). CHRISTOPHER M. SARMA* Admitted to bar, 2016, New York (admitted only in New York; supervision by partners of the firm). Education: Wesleyan University (B.A., 2009); Oxford University (MSc, 2011); Cornell Law School (J.D., magna cum laude, 2015). Articles Editor, Cornell Law Review, 2014-2015; Law Clerk: Hon. Edward R. Korman, U.S. District Court, Eastern District of New York, 2015-2016; Hon. Andrew J. Kleinfeld, U.S. Court of Appeals, Ninth Circuit, 2016-2017. Author: Note, Citizenship and the War on Terror: Should Federal Courts Consider a Plaintiff’s Citizenship in Post-9/11 Litigation?, 100 Cornell Law Review. (2015). DANIEL S. SEVERSON Admitted to bar, 2016, New York; 2017, District of Columbia. Education: Bard College (B.A., 2010); Harvard University (M.P.P., 2016); Harvard Law School (J.D., cum laude, 2016). Editor in Chief, Harvard International Law Journal, 2015-2016. Law Clerk: Hon. Allyson Kay Duncan, U.S. of Appeals, Fourth Circuit, 2016-2017. Author: The Encryption Debate in Europe, Hoover Institution (forthcoming 2017); The Court and the World: An Interview with Associate Justice Stephen G. Breyer, 57 Harvard International Law Journal 253 (2016); National Security Reporting Requirements: Managing the Tension Between Secrecy and Accountability, 2016; American Surveillance of Non-U.S. Persons: Why New Privacy Protections Offer Only Cosmetic Change, 56 Harvard International Law Journal 465 (2015). Languages: French, Mandarin.  LILLIAN V. SMITH* Admitted to bar, 2017, New York (admitted only in New York; supervision by partners of the firm). Education: University of Virginia (B.A., with high distinction, 2008); Brooklyn Law School (J.D., summa cum laude, 2016). Editor in Chief, Brooklyn Law Review, 2015-2016. Law Clerk: Chief Judge Roger L. Gregory, U.S. Court of Appeals, Fourth Circuit, 2016-2017. Author: Note, Recreating the “Ritual Carving”: Why Congress Should Fund Independent Redistricting Commissions and End Partisan Gerrymandering, 80 Brooklyn Law Review 1641 (2015).  DAVID S. SUSKA  Admitted to bar, 2016, Virginia; (admitted only in Virginia; supervision by partners of the firm).   Education: University of Michigan (B.A., 2008, M.A., 2009); University of Chicago Law School (J.D., with Honors, 2016). Law Clerk: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit, 2016-2017. Author: The Federal–State Standing Gap, William and Mary Bill of Rights Journal (forthcoming 2018); Reappraising Dodd-Frank’s Living Will Regime, 36 Review of Banking & Financial Law 779 (2017); Regulatory Takings and Ridesharing, 19 New York University Journal of Legislation & Public Policy 183 (2016). JULIUS P. TARANTO Admitted to bar, 2017, District of Columbia; Education: Pomona College (B.A., cum laude, 2012); Yale Law School (J.D., 2016). Coker Fellow, Constitutional Law. Co-President, Yale Law School National Security Group, 2014-2015. Law Clerk: Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit, 2016-2017. Co-Author:   Comment, Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence Surveillance Court, Yale Law Journal (2015). ..

Published in Litigation, Volume 44, Number 2, Winter 2018. © 2018 by the American Bar Association. By David C. Frederick and Brendan J. Crimmins The authors are members of the Washington, D.C., law firm of Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. Although one or both of us served as counsel for parties in many of the cases discussed in this article, the views expressed here are our own and do not necessarily reflect the opinions of any of our current or former clients, or our law firm. Commentators have vigorously debated the accuracy of labeling the Roberts Court as “pro-business.” In many respects, that label is accurate, but in some important cases involving consumer rights, the Court has not bent reflexively toward pro-business positions. For many years, we have represented consumers and investors—among other types of clients—in cases before the Supreme Court. We have seen a number of recurring themes in Supreme Court cases pitting individual plaintiffs against business interests. Those themes can be illustrated through a discussion of recent Supreme Court cases involving preemption of state tort law, as well as Supreme Court cases involving securities fraud and breach of fiduciary duty. Our primary aim in this article is to focus on some of the strategic themes and tactics from cases in which consumers and investors have prevailed in the Supreme Court. But we first note a fundamental point about Supreme Court advocacy: the importance of first principles. We are not breaking new ground in remarking that counsel representing any client—plaintiff or defendant—in the Supreme Court must focus on first principles. What do we mean by “first principles”? We mean that, when the case presents a question involving the meaning of a federal statute—as most Supreme Court cases do—counsel must focus intensively on the text and structure of the statute and employ all of the traditional tools of statutory interpretation, including a careful examination of the common-law background against which Congress enacted the law. Circuit precedent, so much a part of advocacy in the lower courts, matters little, if at all, once a case reaches the Supreme Court. With that overarching point in mind (and we will return to it), we turn to the lessons that can be learned from preemption cases. Full Text Available Here. ..