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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 has deep experience litigating a wide range of complex matters, including cases involving governmental entities and unsettled questions of constitutional and statutory law.

Mr. Shaffer is Co-Chair of the firm’s Government & Regulatory Litigation practice as well as its National Appellate Litigation practice and has served as lead attorney or otherwise played central roles in many high-profile trial and appellate matters. To date, he has litigated for and against various states and has handled cases before numerous tribunals, including the U.S. Supreme Court, U.S. courts of appeals and district courts, state supreme courts, administrative tribunals, and regulatory boards. He has particular expertise handling disputes against the United States and its agencies as well as against regulators at the state and local levels. 

In litigation between private parties, Mr. Shaffer has handled a variety of high-stakes matters involving a diverse array of subject matter. Among other things, he has vindicated First Amendment rights to public expression in defending against defamation claims. He helped obtain a series of path-breaking decisions that have helped shape patent law. He has led the defense of parallel class actions in federal and state courts. He won appellate precedent  establishing the inability of private arbitrators to compel document production from a third party outside of a hearing. 

Mr. Shaffer is comfortable handling all phases of litigation – through inception, discovery, trial, and appeal.  And he no less accomplished building factual records and examining witnesses in trial courts throughout the United States than he is arguing legal questions before the highest appellate tribunals. 

  • Americans for Prosperity & Americans for Prosperity Foundation
  • Robert Kraft
  • Express Scripts, Inc.
  • Caltech
  • Gartner, Inc.
  • Agility Public Warehousing Co.
  • Shawn Carter
  • Koch Industries
  • Marvell Technology Group
  • Wedgewood Pharmacy
  • FBME Bank
  • Samsung
  • Megaupload & Kim Dotcom
  • Wexford Capital
  • States of Alabama, Florida, Hawaii, Michigan and Tennessee
  • Obtained review by the U.S. Supreme Court and argued 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. 
  • Led motions practice and legal strategy for the defense of Robert Kraft against state prosecution for alleged solicitation in Palm Beach County.  To date, Mr. Kraft has successfully obtained sealing and suppression of videotapes that were made of him, based on rulings that his constitutional rights were violated. 
  • 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).
  • Won a preliminary injunction 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).
  • 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.  Mr. Shaffer then proceeded to argue on appeal before the Connecticut Supreme Court and won a unanimous, precedent-setting affirmance.  See NetScout Systems, Inc. v. Gartner Inc., 334 Conn. 396 (2000). 
  • 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. 
  • Won 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.
  • Won 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).
  • Won a preliminary injunction, based on the First Amendment, preventing the Attorney General of California from demanding that a 501(c)(3) nonprofit disclose a list of its major donors nationwide.  See Americans for Prosperity Foundation v. Harris, 182 F.Supp.3d. 1049 (C.D. Cal. 2016). 
  • 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).
  • 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).
  • Obtained 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.
  • 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).
  • 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). 
  • Obtained a confidential settlement in excess of $20 million in a large intellectual property dispute between former co-venturers.
  • 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).
  • 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).
  • 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
  • United States Supreme Court
  • United States Courts of Appeals:
    • Second 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
  • Court of Federal Claims
  • 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
  • Listed in The Best Lawyers in America for Appellate Practice, 2020-2021.
  • Named a "Super Lawyer" in General Litigation and a “Rising Star” for Washington, D.C. in 2013-2014 by Super Lawyers.
  • Member, American Bar Association
  • Stanford Law School:
    • Lecturer in First Amendment and Constitutional Litigation, 2006-2008