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March 19, 2009

Lawyer on the Pre-emption Frontlines: Frederick Won Two Supreme Court Cases That May Shape Perception of Court's 2008 Term.

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - For a lawyer arguing before the U.S. Supreme Court, there's nothing worse than facing Justice Anthony Kennedy's steely glare.

If you alienate Kennedy, the current swing vote on the court, there's a good chance you'll lose the case altogether.

That's what seemed to be happening to Washington-based advocate David C. Frederick last October when he represented plaintiffs in a key case looking into whether federal cigarette-labeling regulations prevent plaintiffs from filing in state courts deceptive practices suits against the manufacturers of light cigarettes. Altria v. Good, 2008 DJDAR 18257.

Kennedy didn't take kindly to Frederick's suggestion that lawsuits against the cigarette companies were solely about deceptive marketing practices and did not, technically, touch upon the health risks of smoking.

"Mr. Frederick," the justice said pointedly. "If I take away from your oral argument that it is your position that this suit is not based on a link between smoking and health, I'm going to have difficulty in accepting your position in this entire case."

Frederick was able to extricate himself from that particular dead end, but Gibson Dunn & Crutcher's Theodore B. Olson, who argued the case for the tobacco companies, remembers his counterpart's struggles well.

"He had some tough going there," Olson said. "I thought it was one that could go either way."

It may have been a crucial moment, because it turned out that Kennedy was indeed the swing vote in the 5-4 decision in Frederick's favor that came down in December.

The court concluded that the labeling laws do not, in fact, prevent plaintiffs from filing state lawsuits, a decision that was a blow to the business community.

Not content with rejecting pre-emption once, the justices held in a 6-3 decision earlier this month in an even more high profile case, also argued by Frederick, that state lawsuits against drug manufacturers are not pre-empted by Food and Drug Administration labeling regulations. Wyeth v. Levine, 2009 DJDAR 3199.

In the space of three months, Frederick, who has carved out a niche arguing pre-emption cases, emerged as the victor in two cases that could end up shaping perceptions of the court's 2008 term.

Taken together, the pre-emption cases are a repudiation of the broad arguments adopted by various industries in an attempt to prevent costly litigation in state courts.

By extension, the rulings, especially Wyeth, were also a final defeat for the outgoing Bush administration, which had endorsed the pre-emption strategy.

Frederick, a quietly-spoken veteran of 26 Supreme Court arguments, takes it all in stride.

"What matters is the next one," he said in an interview. "I try not to get too high when things go well and not to get too low when things don't go too well."

Allison Zieve, an attorney for consumer group Public Citizen, hopes the Wyeth case marks the end of an era. Public Citizen had been lined up to argue Wyeth when the trial lawyer lobby pushed for Frederick instead.

"There will be fewer pre-emption arguments than there have been in the past couple of years," Zieve said. "I would expect Wyeth will discourage companies from pursuing those arguments."

That doesn't necessarily mean that the court has suddenly changed course on pre-emption altogether, as Frederick, a partner at Washington firm Kellogg, Huber, Hansen, Todd, Evans & Figel, concedes.

Every pre-emption case is statute specific, he says. Last term, the court ruled in favor of pre-emption in four out of six cases.

In one of those, the court held 8-1 - in a case Zieve lost on behalf of the plaintiffs - that medical devices are subject to federal pre-emption because of specific statutory language. Riegel v. Medtronic, 128 S.Ct. 999.

Justice Ruth Bader Ginsburg was the lone dissenter.

"You really have to get into the history of the statute," Frederick said. "I think the court takes each of these pre-emption cases as it finds them."

The real distinction, experts say, is whether Congress explicitly states in legislation that a particular regulation is intended to supersede state laws. That is known as "express pre-emption."

That argument was successful in Riegel because the device manufacturers could point to such language. In Wyeth, no such language existed, meaning the drug manufacturers had to rely on a weaker argument focusing on so-called "implied pre-emption" in which lawyers look beyond congressional statutes for any evidence supporting their theory of the case.

The cigarette case was a closer vote in part because manufacturer Altria Group Inc., the parent company of Philip Morris, claimed express pre-emption language existed in the labeling law. In the majority opinion, Justice John Paul Stevens conceded that the statute contained some express pre-emption language but concluded that it didn't apply to state deceptive practices claims.

Frederick may be getting a lot of credit for his two victories, but some think he got some help from an unlikely source: The Bush administration.

That, at least, is the theory of Doug Kendall, who heads the Constitutional Accountability Center, a Washington-based progressive legal group.

Kendall believes that the Bush administration pushed too hard in arguing for pre-emption in instances where it was contradicted by statutory or regulatory language.

In Wyeth, for example, administration officials inserted language into an FDA document, over the objections of career staff, in which they asserted that the statutory language supported the pharmaceutical company's position. Government lawyers then cited that language in their brief.

Some of the justices, who may not have been completely sympathetic to Frederick's argument, could have been pushed in his direction because of the government's position, Kendall said.

"The actions taken by the Bush administration were so strained and after the fact, it did color the justices' views in the case," Kendall said.

Stevens, who wrote the majority opinion in Wyeth, even stated that "the FDA's recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight."

Looking back on his two successful arguments, Frederick admitted that both were tough, not least when he found himself on the wrong side of Kennedy in the Altria argument.

"I thought he was asking one of the very difficult questions in the case, and he wanted a straight answer, which I tried to give him," Frederick said.

In response to Olson's recollections about the argument, Frederick noted good-humoredly that neither lawyer got their way.

"There were times when both of us were in trouble," he said.