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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 practice as well as its National Appellate Litigation practice. He has deep and varied experience litigating a range of complex matters, including cases involving governmental entities and unsettled questions of constitutional and statutory law, as well as high-stakes commercial disputes. And he is no less adept at developing facts and eliciting testimony at the trial level than he is at arguing legal issues before the highest appellate tribunals.  

Mr. Shaffer 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 tribunals across the United States, including the U.S. Supreme Court, U.S. courts of appeals and district courts, state supreme courts, administrative agencies, private 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. Since 2020, for instance, he has been counsel of record before the U.S. Supreme Court in two cases (Allen v. Cooper and Americans for Prosperity Foundation v. Becerra) in which he obtained review in lawsuits against states (North Carolina and California) that pose important constitutional questions. He also won a precedent-setting victory on appeal in Florida state court, establishing that law enforcement in Palm Beach violated the Fourth Amendment by videotaping patrons in private massage rooms.     

In litigation between private parties, Mr. Shaffer has handled a variety of high-profile matters involving a diverse array of issues. Among other things, he has defended First Amendment rights to public expression and to free exercise of religion in order to defeat private lawsuits that threaten to encroach. He helped obtain a series of groundbreaking decisions that have helped shape patent  law. He has also defended against class actions in federal and state courts, and successfully carried arguments up on appeal. He won appellate precedent that help establish the rules of the game for private arbitrations.  

Mr. Shaffer 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 fora, and thrives at driving arguments seamlessly between trials and appeals.  

  • Americans for Prosperity & Americans for Prosperity Foundation
  • Robert Kraft
  • Express Scripts, Inc.
  • Caltech
  • Johns Hopkins University
  • Tesla
  • Gartner, Inc.
  • Agility Public Warehousing Co.
  • Shawn Carter
  • Koch Industries
  • Wedgewood Pharmacy
  • FBME Bank
  • Samsung
  • Megaupload & Kim Dotcom
  • Wexford Capital
  • States of Alabama, Florida, Hawaii, Michigan and Tennessee
  • Mr. Shaffer has obtained Supreme Court review on behalf of Americans for Prosperity Foundation as counsel of record in a case that is set to be argued towards the end of the 2020 Term, posing the question whether the First Amendment prevents the California Attorney General from demanding that a 501(c)(3) nonprofit disclose a list of its major donors nationwide.  Meanwhile, an injunction currently remains in place to protect against donor disclosure.  See 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.  
  • On behalf of Robert Kraft, Mr. Shaffer argued and won the appeal before Florida’s Fourth District Court of Appeal establishing that video recordings had been taken inside a private spa in violation of the Fourth Amendment, resulting in dismissal of charges for alleged solicitation in Palm Beach County.
  • 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 a 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 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).
  • 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 (2000).  
  • 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 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
  • 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 2020 guide for Appellate Practice.
  • 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