Brett A.Shumate

Partner

Washington + 1.202.879.3835

Brett Shumate assists clients with high-stakes regulatory litigation involving the government. He develops creative strategies to challenge state and federal laws and regulations on constitutional and statutory grounds. He handles crisis litigation and defends clients in bet-the-company enforcement actions.

Brett currently represents clients in litigation arising under the Administrative Procedure Act (APA), Telephone Consumer Protection Act (TCPA), Federal Food, Drug, and Cosmetic Act (FDCA), and Medicare Act. He also advises clients in litigation involving climate change, international trade, national security, communications, and agency guidance.

Brett joined Jones Day from the U.S. Department of Justice (DOJ), where he served as deputy assistant attorney general for the Civil Division's Federal Programs Branch. He handled litigation impacting nearly every sector of the economy, including health care, education, labor, national security, foreign affairs, sanctions, telecommunications, and energy. He was the government's lead counsel in a number of high-profile cases, successfully defending the president's Executive Order on Reducing Regulation and the appointment of the Consumer Financial Protection Bureau's (CFPB) acting director.

Brett has particular experience in litigation affecting telecommunications and technology companies. After successfully challenging the Federal Communications Commission's (FCC) 2010 net neutrality rules, he argued a First Amendment challenge to the FCC's 2015 net neutrality rules in an industry-wide appeal.

Brett has argued more than two dozen cases in the federal district courts, Court of International Trade, and U.S. Courts of Appeals.

Experience

  • Health care provider avoids Medicare revocation premised on violation of Medicare guidanceJones Day represented a health care provider in a Medicare revocation proceeding before the Centers for Medicare & Medicaid Services (CMS), a component of the Department of Health & Human Services.
  • Major American manufacturer reviews PREP Act immunityJones Day advised a major American manufacturer during the COVID-19 pandemic on obtaining immunity from liability for the manufacture and distribution of covered countermeasures under the Public Readiness and Emergency Preparedness Act (PREP Act).
  • Republican House leaders and Financial Services Committee members argue that Consumer Financial Protection Bureau's structure violates Constitution's separation of powersJones Day is representing House Minority Leader Kevin McCarthy, Minority Whip Steve Scalise, and twenty-five Republican members of the House Financial Services Committee as amici in a U.S. Supreme Court challenge to the constitutionality of the Consumer Financial Protection Bureau (CFPB).
  • Biotechnology company persuades FDA to lift clinical hold on experimental gene therapyJones Day represented a biotechnology company in a lawsuit against the Food and Drug Administration (FDA) for placing a clinical hold on the company’s experimental gene therapy.
  • The following represents experience acquired prior to joining Jones Day.

    Public Citizen v. Trump (D.D.C.): argued successful defense of the president's Executive Order on Reducing Regulation.

    English v. Trump (D.D.C.): argued successful defense of Mick Mulvaney's appointment as acting director of the CFPB.

    Citizens for Responsibility and Ethics in Washington v. Trump (S.D.N.Y.): argued successful defense of Emoluments Clause claim against the president.

    Texas v. U.S. (N.D. Tex.): argued constitutional challenge to the Affordable Care Act's individual mandate.

    U.S. v. California (C.D. Cal.): coordinated preemption challenge to California's net neutrality law.

    Center for Biological Diversity v. Zinke (D. Alaska): supervised successful defense of the Congressional Review Act.

    Cummings v. Murphy (D.D.C.): supervised successful defense of Congressional members' lawsuit seeking to obtain documents regarding the Trump International Hotel.

    City of San Francisco v. DOJ (N.D. Cal.): supervised successful defense of DOJ's rescission of guidance documents.

    Exxon v. Mnuchin (N.D. Tex.): supervised defense of challenge to sanctions imposed by Office of Foreign Assets Control (OFAC).

    Knight First Amendment Institute v. Trump (S.D.N.Y.): supervised defense of First Amendment challenge to president's blocking of Twitter followers.

    New Hampshire Lottery Commission v. Barr (D.N.H.): supervised defense of Office of Legal Counsel opinion on applicability of Wire Act to non-sports betting and state lotteries.

    Center for Biological Diversity v. Trump (D.D.C.): supervised defense of the president's declaration of a national emergency.

    American Bankers Association v. U.S. (Fed. Claims): represented American Bankers Association and Washington Federal, N.A. in challenge to federal statute reducing stock dividend to Federal Reserve member banks.

    USTelecom v. FCC (D.C. Cir.): represented Alamo Broadband in First Amendment challenge to FCC net neutrality rules.

    Verizon v. FCC (D.C. Cir.): represented Verizon in successful challenge to FCC net neutrality rules.

    Neustar v. FCC (D.C. Cir.): represented Neustar in challenge to FCC award of $500 million contract.

    U.S. v. Martin (Ninth Cir.): represented defendant in successful appeal overturning federal criminal tax convictions and sentence.

    Bais Yaakov v. FCC (D.C. Cir.): represented amicus National Federation of Independent Business (NFIB) in challenge to FCC fax rules.

    Cox v. BMG (Fourth Cir.): represented amicus United States Telecom Association in case involving the Digital Millennium Copyright Act (DMCA).

    Maverick Tube Corporation v. U.S. (Court of International Trade): represented Maverick Tube Corporation in challenge to Department of Commerce subsidy ruling.

    Additional Publications

    • February 10, 2020
      Justice Kavanaugh Hints at Future Consideration of Nondelegation Doctrine

    Publications Prior to Jones Day

    The International Comparative Legal Guide to Telecoms, Media & Internet Laws & Regulations (2017)

    Business and Commercial Litigation in Federal Courts: Communications Litigation, 4th ed., Thomson Reuters (2016)

    FCC’s Use of "Fact Sheets" Short-Circuits the Administrative Procedure Act, Washington Legal Foundation (2016)

    10 Things To Know About Net Neutrality And Class Actions, Law360 (2016)

    Sponsored Data, Net Neutrality, and the 1st Amendment, Law360 (2016)

    Net Neutrality and the Rule of Law, Engage: The Journal of the Federalist Society Practice Groups (2015)

    The FCC’s Expanding Use of Delegated Authority and the Dilemma of Appellate Jurisdiction, Communications Lawyer, Vol. 31, No. 2 (2015)

    Don’t Tread on the Internet, Los Angeles Daily Journal (2014)

    D.C. Circuit Challenge to FCC’s Authority Over Fax Advertisements Has Important First Amendment Implications, Bloomberg BNA’s Telecommunications Law Resource Center (2014)

    Speaking Engagements

    • March 3, 2020
      What In-House Counsel Need To Know About Agency Guidance: Banking Industry
    • January 29, 2020
      What In-House Counsel Need To Know About Agency Guidance: Webinar
    • November 21, 2019
      What In-House Counsel Need To Know About Agency Guidance: Telecommunications Industry
    • November 19, 2019
      What In-House Counsel Need To Know About Agency Guidance: Retail Industry
    • October 29, 2019
      The Future of Administrative Records after Department of Commerce v. New York

    Speaking Engagements Prior to Jones Day

    2016
    Taking the FCC to Court: An Adventurous Agency Faces Increasing Judicial Scrutiny, Washington Legal Foundation Media Briefing Program

    2016
    Free Speech and the Internet, The Federalist Society Video Series

    2015
    Consequences of Net Neutrality: Perspectives from Across the Industry, 2015 FCBA Annual Seminar

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