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Shaffer, Derek L.

Derek L. Shaffer

Direct Tel: +1 202-538-8123
Washington, D.C.
Tel: +1 202 538 8000 Fax: +1 202 538 8100

Derek Shaffer is Co-Chair of the firm’s Government & Regulatory Litigation and National Appellate Litigation practices. He has deep and varied experience litigating a range of challenging issues, including cases involving government entities and unsettled constitutional and statutory questions. Derek is a scholar and a pragmatist in equal parts, regularly bringing his acumen to bear in high-stakes commercial disputes. A consummate litigator, he is no less adept at developing facts and eliciting testimony at trial than at arguing complex issues before appellate tribunals. 

This unique blend of talents has garnered Derek numerous awards and accolades. The American Lawyer’s Litigation Daily named him  “Litigator of the Week” in August 2021 for leading Norwegian Cruise Lines’ successful fight against Florida officials that enabled cruise lines to require that passengers provide proof of COVID vaccination. Also in 2021, Law 360 dubbed him an “Appellate MVP,” noting his recent string of resounding wins and observing how he successfully took Americans for Prosperity Foundation’s First Amendment “suit all the way from the earliest stages at the trial level up to the highest stages of appellate review” in prevailing before the U.S. Supreme Court. And BuzzFeed has described Derek’s “gift for rhetorical flourishes”  as making him “a highly sought-after white-collar crime defender” within the criminal defense realm.

Derek has served as lead attorney or otherwise played central roles in many high-profile trial and appellate cases. To date, he has litigated for and against various states and has handled cases before tribunals across the United States, including the U.S. Supreme Court, U.S. courts of appeals and district courts, as well as state supreme courts, administrative agencies, private tribunals, and regulatory boards. He has particular expertise in handling disputes against the United States government and its agencies as well as against regulators at the state and local levels. 

When important constitutional rights are imperiled by the government, clients turn to Derek. For example, in 2021, he served as counsel of record before the U.S. Supreme Court in Americans for Prosperity Foundation v. Bonta, in which he obtained review and then persuaded the Supreme Court that the First Amendment protected his client, a 501(c)(3), against a demand by the California Attorney General that it disclose its top donors. Through years of hard-fought litigation, Derek had built the trial record upon which the Supreme Court ultimately relied. (Watch the video.)  

In litigation between private parties, Derek has handled a variety of high-profile matters spanning a diverse array of issues. Among other things, he has defended First Amendment rights to public expression and the free exercise of religion in defeating private lawsuits that threatened to encroach on those rights. He has won appellate precedents that helped establish rules for private arbitrations. In 2021, he obtained a precedential opinion from the en banc Delaware Supreme Court in favor of his client Express Scripts, reversing an adverse trial verdict and establishing (among other things) the enforceability under Delaware law of parties’ agreements to restrict post-acquisition recourse to claims of intentional fraud.

Derek handles all phases of litigation while orchestrating strategies that are designed to maximize winning chances at every turn – from inception through discovery, pre-trial motions, trial, post-trial motions and appeal. Unlike most of his peers, he remains in his element across disparate subject matter and tribunals, and thrives at driving arguments seamlessly between trials and appeals. Derek’s ability to shape trial records so as to set up winning appeals gives his clients a competitive edge.

  • Norwegian Cruise Lines
  • Express Scripts, Inc.
  • Americans for Prosperity & Americans for Prosperity Foundation
  • Caltech
  • Johns Hopkins University
  • National Association of REALTORS
  • Tesla
  • Gartner, Inc.
  • Agility Public Warehousing Co.
  • Shawn Carter
  • Koch Industries
  • Wedgewood Pharmacy
  • FBME Bank
  • Samsung
  • In August 2021, Mr. Shaffer obtained from the U.S. District Court for the Southern District of Florida a pathbreaking preliminary injunction on behalf of Norwegian Cruise Line Holdings  enabling its cruise ships to sail as planned, with proof that all passengers are fully vaccinated, notwithstanding a Florida statute that prohibits businesses from requiring that customers supply vaccine documentation.  The district court agreed with Mr. Shaffer’s arguments that Florida’s prohibition offends both the First Amendment and the Dormant Commerce Clause. 

  • Mr. Shaffer in 2021 won a seminal First Amendment decision from the U.S. Supreme Court protecting the rights of all nonprofits and their donors to associate privately.   The Supreme Court adopted Mr. Shaffer’s arguments for the petitioners in holding that the California Attorney General’s demand that all registered charities submit their Schedule Bs to IRS Form 990s, reporting their top donors nationwide, is subject to exacting scrutiny and facially invalid.  See Americans for Prosperity Foundation v. Bonta, 141 S.Ct. 2373 (2021).  That conclusion rested  on a rich evidentiary record and on-point findings  that Mr. Shaffer and his team had carefully developed years earlier at the trial level, establishing that the requested donor information was unnecessary, subject to misuse, and destined to cast a profound chill.  Americans for Prosperity Foundation v. Harris, 182 F.Supp.3d. 1049 (C.D. Cal. 2016).    

  • Mr. Shaffer also obtained review by the U.S. Supreme Court and argued a seminal case posing the question whether a state can be held monetarily liable for copyright infringement, as counsel of record for the petitioners in Allen v. Cooper, 140 S.Ct. 994 (2020).  Although the Supreme Court decided the case in favor of the state, it pointed the way forward for legislative redress along the lines Mr. Shaffer had urged.

  • After being retained by a religious nonprofit, UCI, to defend its interests against a rival religious faction, Mr. Shaffer quickly pursued an appeal to the D.C. Court of Appeals on First Amendment grounds at the end of 2020.   His appellate submissions have yielded an  emergency stay of a remedial order that otherwise threatened to flip control over UCI’s board, followed by a full stay following oral argument in June 2021.

  • On behalf of Express Scripts, Mr. Shaffer in early 2021 persuaded the Delaware Supreme Court sitting en banc to reverse an adverse jury verdict and judgment that had awarded the plaintiff, Bracket, nearly $100 million for alleged accounting fraud surrounding Bracket’s acquisition of a company sold by one of Express Scripts’ subsidiaries.  In a precedential decision, Chief Justice Seitz wrote for the unanimous en banc Court that the trial court had erred both by deviating from a provision of the acquisition agreement that limited Bracket to claims of intentional fraud (different from reckless fraud as contemplated by common law), and by excluding evidence disproving Bracket’s claimed reliance.  See Express Scripts v. Bracket, 248 A.3d 824 (Del. Sup. Ct. 2021).   

  • Mr. Shaffer was one of two partners who successfully convinced the U.S. District Court for the Southern District of New York at the start of 2021 to grant compassionate release of William Underwood after Mr. Underwood had served 33 years of a life sentence in federal prison, developing an exemplary record mentoring other inmates along the pathway to rehabilitation.   

  • On behalf of Express Scripts, Mr. Shaffer in 2020 persuaded the Second Circuit to affirm dismissal of one putative ERISA class action and the Eighth Circuit to reject denial of class certification in another.

  • Mr. Shaffer argued and won a precedential decision from the Federal Circuit in 2020 reversing the U.S. Court of Federal Claims and holding that the United States cannot properly invoke the Debt Collection Act to withhold monies from a government contractor absent proof that the contractor was in fact overpaid for work overseas (specifically for helping with the reconstruction of Iraq).  See Agility Public Warehousing Company K.S.C.P. v. United States, 969 F.3d 1355 (Fed. Cir. 2020).

  • On behalf of Johns Hopkins University, Mr. Shaffer brought a constitutional challenge in U.S. District Court for the District of Columbia in 2020 to the Trump Administration’s threat to deport international students on F-1 visas unless they returned to in-person classes despite COVID-19 risks.  While requests for emergency relief were pending, the Trump Administration withdrew its guidance that had been challenged.

  • On behalf of a coalition of pharmacy compounders, Mr. Shaffer won a first-of-its-kind appeal within U.S. Pharmacopeia, a private organization that helps set the standards governing compounding, and convinced the organization to withdraw its own proposed revised standards in the face of procedural, scientific and practical concerns expressed by the industry. 

  • Mr. Shaffer won a published decision from a unanimous panel of the D.C. Circuit, reversing a district court that had refused, on statute-of-limitations grounds, to enter a default judgment against Iran for its role sponsoring Al Qaeda’s attack that killed the family member of firm clients (alongside scores of others) working at the US Embassy in Kenya in 1998.  See Maalouf v. Islamic Republic of Iran, 923 F.3d 1095 (D.C. Cir. 2019).

  • Mr. Shaffer coordinated the successful representation of the family of Charles Wyly (the deceased Texas billionaire) through complex litigation against the IRS, SEC and DOJ, spanning multiple courts and implicating hundreds of millions of dollars.  Mr. Shaffer’s efforts inside and outside of court helped yield a global settlement that preserved substantial family assets while resolving all outstanding disputes and obviating any further collection efforts by the government.

  • Mr. Shaffer won a preliminary injunction followed by permanent relief prohibiting implementation of a New Jersey statute that threatened to impose sweeping, invasive demands for donor disclosure and other reporting burdens on all 501(c)(4)s engaging in issue advocacy.  The U.S. District Court for the District of New Jersey ruled that the statute facially violated the First Amendment in multiple respects.  See Americans for Prosperity v. Grewal, 2019 WL 4855853 (D.N.J. October 2, 2019).  On the strength of that result, Mr. Shaffer then obtained payment from New Jersey to his client of more than $700,000 in attorney’s fees and costs. 

  • Mr. Shaffer won complete dismissal in Connecticut Superior Court of claims for defamation and unfair trade practices that were brought against a client based on published reviews of technology vendors and their relative standing.  In granting summary judgment, the Connecticut court agreed that the relevant claims were foreclosed by the First Amendment and also without merit.  After arguing the case on appeal before the Connecticut Supreme Court, Mr. Shaffer won a unanimous, precedent-setting affirmance.  See NetScout Systems, Inc. v. Gartner Inc., 334 Conn. 396 (2020). 

  • Mr. Shaffer won key legal rulings on behalf of Caltech en route to a jury awarding Caltech more than $1.1 billion for infringement by Apple and Broadcom of Caltech’s patents relating to wireless data transmission. 

  • Mr. Shaffer won a pro bono victory protecting the First Amendment rights of a young woman who was sued by a wealthy foreign scion, who alleged our client had defamed him by blogging about sexual assault she suffered while growing up as a teenager abroad.  Following grant of a an Anti-SLAPP motion by D.C. Superior Court, Mr. Shaffer obtained an award of attorney’s fees as well as an important precedent protecting the rights of victims who speak out against sexual abuse.

  • Mr. Shaffer won a unanimous opinion from the Ninth Circuit holding that arbitrators lack authority under Section 7 of the Federal Arbitration Act to subpoena documents from third parties separate and apart from compelling attendance at an arbitration hearing.  See CVS v. Vividus, 878 F.3d 703 (9th Cir. 2017).

  • Mr. Shaffer argued for and won complete dismissal in New York state court of fraud claims by Teva against the Espinosa family, thereby successfully protecting $2.3 billion that Teva paid the Espinosas to acquire a leading Mexican pharmaceutical company, Rimsa.  Following dismissal of the fraud case, Teva failed in its efforts to restrain the proceeds and the case settled on favorable terms for a fraction of the amount Teva had sought. 

  • Mr. Shaffer won the first-of-its-kind preliminary injunction, based on the Administrative Procedure Act, preventing the Financial Crimes Enforcement Network (“FinCEN”) Bureau of the Department of Treasury from implementing a sanction under Section 311 of the Patriot Act that stood to deny U.S. dollars and correspondent accounts to a foreign bank that FinCEN alleged to be “of primary money laundering concern.”  See FBME Bank Ltd. v. Lew, 125 F.Supp.3d 109 (D.D.C. 2015).

  • Mr. Shaffer helped obtain reversal by the Federal Circuit of a district court’s grant of injunction requested by Apple to block Samsung’s sale of the Galaxy Nexus, which reversal was preceded by initial grant of emergency stay pending appeal and followed by denial of rehearing en banc.  See Apple v. Samsung, 695 F.3d 1370 (Fed Cir. 2012).

  • Mr. Shaffer obtained an all-but-unprecedented decision by the International Trade Commission to dismiss, without instituting investigation, a drug manufacturer’s attempt to block importations by a variety of entities engaged in drug compounding.

  • Mr. Shaffer won from a unanimous panel of the D.C. Circuit reversal and vacatur of the Drug Enforcement Administration's adverse administrative decision that had foreclosed a client engaged in nationwide drug compounding from handling controlled substances.  See Wedgewood Village Pharmacy v. DEA, 509 F.3d 541 (2007).

  • Mr. Shaffer won a unanimous, precedential decision from the Ninth Circuit on behalf of a Muslim prison inmate who complained of religious discrimination.  After the district court dismissed the prisoner’s challenge on summary judgment, Mr. Shaffer won reversal and reinstatement of claims that prison officials had failed to justify their refusal to afford a Muslim inmate dietary accommodations on par with those afforded to Jewish inmates.  See Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008). 

  • Mr. Shaffer obtained a confidential settlement in excess of $20 million in a large intellectual property dispute between former co-venturers.

  • Mr. Shaffer successfully represented the State of Tennessee in federal district court and then the Sixth Circuit, winning series of decisions that paved the way for Medicaid reforms by overcoming class-action disputes based on governing consent decrees.  See John B. v. Emkes, 852 F.Supp.2d 957 (M.D. Tenn. 2012); John B. v. Goetz, 626 F.3d 356 (6th Cir. 2010); John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008); Rosen v. Goetz, 410 F.3d 919 (6th Cir. 2005).

  • Mr. Shaffer successfully represented Governor Acevedo-Villa in federal district court and then the First Circuit in a constitutional dispute over ballots that ultimately determined the result of Puerto Rico's 2004 gubernatorial election.  See Rossello-Gonzalez v. Calderon-Serra, 398 F.3d. 1 (1st Cir. 2004).

  • Mr. Shaffer obtained from the U.S. Department of Agriculture an extraordinary recovery of attorney's fees after successfully exonerating circus entities over the course of protracted, hotly-contested administrative proceedings.

  • Stanford Law School
    (J.D., 2000)
    • Nathan Abbott Scholar (graduated first in his class)
    • Order of the Coif
  • Cornell University, College of Industrial & Labor Relations
    (B.S., 1996)
    • Valedictorian
  • The Bar of the District of Columbia
  • The State Bar of California
  • The State Bar of New York
  • United States Supreme Court
  • New York State Supreme Court:
    • Third Department
  • United States Courts of Appeals:
    • Second Circuit
    • Third Circuit  
    • Fourth Circuit
    • Fifth Circuit
    • Sixth Circuit
    • Ninth Circuit
    • Eleventh Circuit
    • District of Columbia Circuit
    • Federal Circuit
  • United States District Courts:
    • District of Columbia
    • Central District of California
    • Northern District of California
    • Eastern District of Michigan
    • Southern District of New York
    • District of Colorado
  • Court of Federal Claims
  • District of Columbia Court of Appeals
  • Cooper & Kirk, PLLC:
    • Partner, 2001-2012
  • Stanford Constitutional Law Center:
    • Executive Director and Lecturer in Law, 2006-2008
  • Law Clerk to Chief Judge Douglas H. Ginsburg:
    • United States Court of Appeals for the District of Columbia Circuit, 2000-2001
  • Ranked by Legal 500 USA, Dispute Resolution: Appellate – Courts of Appeal, Supreme Courts (States and Federal) “Recommended Lawyers”, 2023
  • Ranked by Chambers, Litigation: General Commercial: District of Columbia Band 3, 2023-2024
  • Named a 2021 'MVP' by Law360 for Appellate Practice.
  • Listed in The Best Lawyers in America 2020-2023 guides for Appellate Practice.
  • Named ‘Litigator of the Week' by The AmLaw Litigation Daily (2021).
  • Named a “Super Lawyer” in General Litigation and a “Rising Star” for Washington, D.C. in 2013-2014 by Super Lawyers.
  • Stanford Law School:
    • Lecturer in First Amendment and Constitutional Litigation, 2006-2008