Experience

• David has played a role in myriad civil, administrative, and criminal proceedings on behalf of individuals, companies, and trade associations, including:

  Regulatory Litigation

  • Representing technology companies challenging rule of Patent Trial & Appeal Board governing institution of inter partes review of patents: Apple v. Vidal (Fed. Cir.; N.D. Cal.)
  • Representing renewable-fuel trade association challenging and/or defending EPA’s annual Renewable Fuel Standard rules: Americans for Clean Energy v. EPA (D.C. Cir.); Alon Refining v. EPA (D.C. Cir.); American Fuel & Petrochemical Manufacturers v. EPA (D.C. Cir.); Growth Energy v. EPA (D.C. Cir.); RFS Power Coalition v. EPA (D.C. Cir.); Sinclair Wyoming v. EPA (D.C. Cir.)
  • Representing renewable-fuel trade association challenging or defending EPA decisions on petitions for “small refinery” exemptions under Renewable Fuel Standard: Sinclair Wyoming v. EPA (D.C. Cir.); Renewable Fuels Ass’n v. EPA (D.C. Cir.); HollyFrontier Cheyenne v. EPA (S. Ct., amicus)
  • Representing renewable-fuel trade association defending EPA action waiving requirement for selling E15 fuel year-round: American Fuel & Petrochemical Manufacturers v. EPA (D.C. Cir.)
  • Representing ethanol producer challenging EPA policy for approving cellulosic biofuel for purposes of Renewable Fuel Standard and challenging EPA decision denying producer’s application under that policy: POET v. EPA (D.C. Cir.); POET v. EPA (8th Cir.)
  • Representing automaker defending EPA actions establishing greenhouse gas emissions standards: Ohio v. EPA (D.C. Cir.); Texas v. EPA (D.C. Cir.)
  • Amicus brief for clearing house arguing that appointment of judges on Patent Trial and Appeal Board was constitutional: US v. Arthrex (S. Ct.)
  • Amicus brief for power suppliers and distributors defending FERC regulation of wholesale “demand response” in electricity market: Federal Energy Regulatory Commission v. Electric Power Supply Ass’n (S. Ct.)
    

  Antitrust litigation

  • Representing NCAA against claims that its student-athlete compensation limits violated antitrust law: O’Bannon v. NCAA (9th Cir.); Alston v. NCAA (S. Ct.; 9th Cir.)
  • Representing company against criminal antitrust (market division) charges: United States v. DaVita (D. Colo.)
  • Representing technology company on appeal from dismissal of antitrust suit involving aggregation of patents: Intel v. Fortress Investment (9th Cir.)
  • Representing movie theater chain against claims that its distribution agreements violated antitrust law: Starlight Cinemas v. Regal Entertainment (2d. Cir.); Cinema Village Cinemart v. Regal Entertainment (9th. Cir.)

  Appeals

  • Representing technology company challenging jury verdict in patent infringement case: Optis Cellular Tech. v. Apple (Fed. Cir.)
  • Representing medical device maker asserting preemption defense against tort claim: Wildman v. Medtronic (5th Cir.)
  • Representing construction company challenging availability of punitive damages in maritime tort suit: Dutra Group v. Batterton (S. Ct.)
  • Representing congressional committee against claim by former president that committee’s demand for his tax returns exceeded committee’s authority and violated the constitutional separation of powers: House Committee on Ways and Means v. Trump (D.C. Cir.)
  • Representing NCAA against claim that student-athletes are “employees” under Fair Labor Standards Act: Dawson v. NCAA (9th Cir.)
  • Representing individual convicted of honest services fraud: United States v. Tanner (2d Cir.)
  • Representing individual claiming Florida death penalty system deprived him of Sixth Amendment right to jury: Hurst v. Florida (S. Ct.)
  • Representing individual claiming sentence violated Armed Career Criminal Act: Mathis v. United States (S. Ct.)
  • Representing individual claiming that adverse tort verdict violated her First Amendment right to speech: Hurchalla v. Lake Point (Fla. Ct. App.)
  • Representing university against claim that it breached its fiduciary duty under ERISA: Sacerdote v. NYU (2d Cir.)

  Administrative and congressional proceedings

  • EPA – annually prepared comments for renewable-fuel trade association on proposed Renewable Fuel Standard rule under Clean Air Act 
  • Departments of the Treasury and Labor – prepared comments for trade association on proposed policies regarding regulation of crypto assets and platforms
  • Department of Veterans Affairs – responded to proposed enforcement action against educational institution
  • Patent & Trademark Office – prepared comment for technology company on possible rules governing institution of inter partes review of patents
  • Federal Reserve Bank – prepared legal analysis for foreign investment company addressing possible applicability of Bank Holding Company Act and International Banking Act
  • Congress – advised trade association on responding to information request from oversight committee, including issues regarding congressional investigative powers and First Amendment