David Frederick

David Frederick (born April 9, 1961) is an appellate attorney in Washington, D.C., and is a partner with Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.^[1]

Education and legal training

Frederick earned a bachelor's degree in 1983 from the University of Pittsburgh.^[2] Frederick obtained a Doctor of Philosophy degree from Oxford University in 1987 as a Rhodes Scholar. In 1989, Frederick earned a Juris Doctor from the University of Texas School of Law in Austin, where he also served as articles editor for the Texas Law Review.

Professional career

After law school, Frederick clerked for Judge Joseph T. Sneed of the United States Court of Appeals for the Ninth Circuit and Justice Byron R. White of the U.S. Supreme Court.^[3] In 1995, he was named counselor to the Inspector General. One year later, he became the assistant to the Solicitor General, a position he held until 2001. During his time with the Solicitor General's Office he earned the Department of Justice Inspector General’s Award for Exceptional Service, the Attorney General’s Distinguished Service Award and the Coast Guard Medal for Distinguished Public Service.

Frederick has argued more than forty cases in the Supreme Court of the United States, across a wide range of issues and industries. Frederick's victories often strengthen plaintiff and consumer interests. Throughout his career, he has demonstrated an ability to persuade conservative justices to take pro-consumer positions.

Pharmaceutical industry

In Wyeth v. Levine (6-3), Frederick helped to convince Justices Stevens, Ginsburg, Kennedy, Souter and Thomas that federal approval of labels that provide warnings about side effects of drugs do not bar lawsuits claiming inadequate warnings of a health risk in state law.^[4] In the case, Diana Levine sued Wyeth for failing to warn patients that the drug Phenergan could cause gangrene when administered using direct IV injection. The 2009 verdict, which overturned a ruling by the Vermont Supreme Court, was a victory for Levine and for victims who could continue bringing their cases to state courts.^[5][6]

In 2010, in Merck & Co. v. Reynolds, Frederick argued against the application of a statute of limitations for securities fraud cases based on mere inquiry notice of potential fraud.^[7][8] In this particular case, shareholders sued Merck after the value of $10 billion Vioxx tanked due to concerns about dangerous side effects arguing that Merck withheld information about the dangers of the drug. Merck asserted a statute of limitations defense, which would have ended before the shareholders had knowledge of all the requisite elements of fraud, but Frederick argued that the statute of limitations should not begin until the plaintiff has enough facts to survive a motion to dismiss.^[9]

The next year, in Matrixx Initiatives, Inc. v. Siracusano (9-0), Frederick argued that statistics involving adverse drug event reports could not negate materiality as a matter of law in a securities fraud suit if the number of adverse reports was not "statistically significant", upholding the decision of the Ninth Circuit.^[10]

In 2013, Frederick successfully represented Kaiser in defending a $142 million jury verdict against Pfizer for fraudulent off-label marketing of Neurontin.^[11]

Sports industry

NFL concussion settlement

In 2013, Frederick and a team of lawyers represented 4,500 retired NFL players in a high-profile case against the National Football League.^[12] Frederick represented the retired players at oral argument in the district court against the NFL’s motion to dismiss the complaints on the ground of preemption under the Labor-Management Relations Act.^[13] Among other arguments, Frederick argued that the NFL actively concealed the health risks of concussions to NFL players.^[14][15] The case reached a $765 million settlement to fund medical exams, concussion-related compensation and medical research.^[16]

MASN

Frederick also represented the Mid-Atlantic Sports Network (MASN) during negotiations with Comcast to bring the Washington Nationals and Baltimore Orioles to Comcast's programming lineup in the Washington D.C. area.^[17] Frederick also represented MASN through three successful Federal Communications Commission (FCC) arbitration rulings against Time Warner Cable.^[18]

Other noteworthy cases

Other noteworthy cases argued by Frederick include: South Carolina v. North Carolina, Idaho v. United States, New Jersey v. Delaware, United States v. Locke, Farina v. Nokia, Inc., Carter v. United States, and California v. Deep Sea Research. He has argued cases in all of the thirteen U.S. courts of appeals.^[19]

In 2001, Frederick represented the United States in oral arguments before the U.S. Court of Appeals for the D.C. Circuit in United States v. Microsoft Corporation in an appeal of the landmark antitrust trial that had held Microsoft Corporation liable for violating antitrust laws.

In Bates v. Dow AgroSciences LLC, Frederick represented a group of peanut farmers from Texas whose crops had burned after the application of an herbicide produced by respondent Dow AgroSciences. The court held in 2005 that the Federal Insecticide, Fungicide, and Rodenticide Act’s express preemption provision does not preclude a range of claims that farmers might bring against manufacturers of agricultural pesticides and insecticides.

In 2008, Altria Group, Inc. v. Good examined whether state-law fraud claims against cigarette makers for allegedly false statements made about light cigarettes are preempted under the federal statute that concerns tobacco labeling. In a 5-4 decision, the court held that state-law claims sounding in fraud against tobacco companies are not preempted by the express preemption provision of the federal labeling statute.^[20]

Additionally, in Jones v. Harris, a 9-0 decision reached in 2010, Frederick persuaded the court to a unanimous decision in favor of investors, reversing a circuit court decision by Judge Frank Easterbrook. The plaintiffs had sued over exorbitant fees charged by mutual fund investment advisers.^[21]

Possible future federal service

Frederick was part of the Obama-Biden Legal Policy Team and was rumored to be on President Obama's short list for Solicitor General.^[22]

On May 27, 2013, the New York Times reported that President Obama was considering nominating Frederick to one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit.^[23]

Publications

Frederick is the author of dozens of legal articles and three books:

• Supreme Court and Appellate Advocacy (West, 2nd Edition, 2010)
• The Art of Oral Advocacy (West, 2nd Edition, 2011)
• Rugged Justice: The Ninth Circuit Court of Appeals and the American West, 1891-1941 (Berkeley: University of California Press, 1994)

References