David Frederick

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.[5] 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.[6][7]

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.[8][9] 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.[10]

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.[11]

In 2013, Frederick successfully represented Kaiser in defending a $142 million jury verdict against Pfizer for fraudulent off-label marketing of Neurontin.[12]

In 2013, Frederick and a team of lawyers represented 4,500 retired NFL players in a high-profile case against the National Football League.[13] 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.[14] Among other arguments, Frederick argued that the NFL actively concealed the health risks of concussions to NFL players.[15][16] The case reached a $765 million settlement to fund medical exams, concussion-related compensation and medical research.[17]

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.[18] Frederick also represented MASN through three successful Federal Communications Commission (FCC) arbitration rulings against Time Warner Cable.[19]

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.[20]

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.[21]

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.[22]