The morning he won the biggest U.S. Supreme Court case of his career, David C. Frederick happened to be in Baltimore at a business meeting with Peter Angelos, the famed trial lawyer and Baltimore Orioles owner.
The court ruled on March 4 for Frederick in Wyeth v. Levine, No. 06-1249, a major defeat for Big Pharma. The win meant that Frederick’s client, Diana Levine, whose forearm was amputated because a Wyeth drug was improperly administered to her, would finally receive the $7 million a jury awarded her. It also meant that plaintiffs’ lawyers like Angelos would still be able to sue pharmaceutical companies in state courts in “failure to warn” cases like Levine’s.
As the magnitude of the victory became clear, Angelos told Frederick, “Let’s have a toast to Diana Levine.” Suddenly the unassuming Frederick, 47, found himself sipping wine before noon with Angelos.
The win was the latest confirmation that Frederick, a partner at the low-profile Washington firm of Kellogg, Huber, Hansen, Todd, Evans & Figel, had arrived in the top tier of Supreme Court advocates. In 26 high court oral arguments during a 13-year period, first at the solicitor general’s office and then at Kellogg Huber, his stature has only grown.
Frederick’s win in the Wyeth case, defeating his former boss, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, was not even the first time this term that Frederick defeated a former solicitor general who represented big business in a federal pre-emption case. Frederick also won Altria v. Good, No. 07-562, on behalf of injured “light” cigarette smokers after arguing against Theodore B. Olson of Los Angeles-based Gibson, Dunn & Crutcher. Justice John Paul Stevens authored both decisions.
Asked how he reached his position among Supreme Court advocates, Frederick stopped to consider his words, as he often does. “How a practice develops is the most mysterious thing in the world to me,” he replied.
At one level, the answer is clear, and Frederick didn’t hesitate to provide it. The bigger firms with Supreme Court practices could never go up against the Wyeths and Altrias of the world on the issue of pre-emption; they’d be conflicted out because of other corporate clients who prefer federal pre-emption in the fields of cigarette and drug labeling and advertising.
“We have many fewer conflicts” at Kellogg Huber, said Frederick, who noted that he also represents companies, not just consumers, on a range of issues. The 50-lawyer firm was created in 1993 with a base of telecommunications work that has expanded to other kinds of civil and white-collar criminal litigation, but none, apparently, that prevents Frederick from representing consumers in the pre-emption, securities and other cases that have come his way. On March 9, the court granted review in another case of Frederick’s, Jones v. Harris Assoc., in which he represents investors suing an investment advisory firm over excessive fees.
But the absence of conflicts does not explain it all. As Paul D. Clement, another former solicitor general, put it, “There are a lot of other people, in academia and elsewhere, who aren’t conflicted out in pre-emption cases that people could go to. But clients go to David.” Clement, now at Atlanta-based King & Spalding, added, “If I were a client taking the nonpre-emption side, I’d go to David, too. He wrote the book on oral advocacy. He is very gifted at the podium.”
That book, Supreme Court and Appellate Advocacy, published in 2003, is a practical primer on oral advocacy. In an introduction, Justice Ruth Bader Ginsburg called Frederick “an accomplished advocate” whose treatise “can arm an attorney to perform to best effect” before the high court and other appellate tribunals.
When he argues, Frederick is straight with the justices and calm as he responds to a barrage of questions. They, in turn, have a high level of comfort with him. In his book, Frederick said with understatement that the current court is “quite active” in its questioning, placing a “high premium on the advocate’s nimbleness in maintaining focus . . . and in fending off hostile questions that threaten to undermine the case.”
Frederick has been nimble on his feet since seventh grade in San Antonio, when he began debating and public speaking. He continued in college at the University of Pittsburgh. A Rhodes Scholar at the University of Oxford, Frederick got his law degree at the University of Texas School of Law. He remains connected to the law school, helping run its Supreme Court clinic.
Even before the Wyeth ruling, Frederick’s reputation helped put his name on early lists of possible candidates President Barack Obama might pick for solicitor general or a judgeship.
Frederick’s response to the speculation: “I am an enthusiastic supporter of President Obama, and he has picked some fantastic people. I will do anything I am asked to help the administration to succeed.”