Brett A.Shumate

Partner

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

Brett represented the Alabama Association of Realtors in a successful challenge to the Centers for Disease Control and Prevention's (CDC) nationwide eviction moratorium in the U.S. Supreme Court. He also successfully challenged the structure of the Consumer Product Safety Commission (CPSC) under the Constitution's separation of powers.

Brett regularly represents clients in litigation arising under the Administrative Procedure Act (APA); Telephone Consumer Protection Act (TCPA); Federal Advisory Committee Act (FACA); Federal Election Campaign Act (FECA); Freedom of Information Act (FOIA); Medicare Act; Tariff Act; Section 340B of the Public Health Service Act (PHSA); Food, Drug, and Cosmetic Act (FDCA); and the U.S. Constitution. He also advises clients in matters involving climate change, ESG (environmental, social, and governance), trade, telecommunications, government contracts, and agency guidance.

Brett joined Jones Day from the U.S. Department of Justice, where he served as deputy assistant attorney general for the Civil Division's Federal Programs Branch. He handled high-profile litigation impacting nearly every sector of the economy, including health care, education, labor, national security, foreign affairs, sanctions, telecommunications, and energy.

Brett has particular experience in litigation affecting telecommunications and technology companies. He has handled numerous appeals challenging Federal Communications Commission (FCC) orders, including a successful challenge to the FCC's net neutrality rules.

经验

  • Nonprofits challenge FEC's enforcement policyJones Day represents nonprofit groups challenging a policy adopted by the Federal Election Commission (FEC) to deliberately conceal from the public and courts the FEC Commissioners' actions taken in otherwise terminated enforcement proceedings.
  • Patent owner challenges FDA regulatory review determinationJones Day represents a patent owner in challenging the U.S. Food and Drug Administration's (FDA) regulatory review period determination for its drug.
  • National Association of REALTORS® files Supreme Court amicus brief in copyright caseJones Day filed an amici curiae brief in the Supreme Court on behalf of the National Association of REALTORS® and 17 other entities connected to the real estate industry in a copyright case involving floorplans.
  • Consumer organization successfully challenges structure of Consumer Product Safety CommissionJones Day successfully represented a consumer organization in a constitutional challenge to the structure of the Consumer Product Safety Commission.
  • Scientist challenges composition of EPA advisory committeesJones Day represents Dr. S. Stanley Young, a scientist challenging the composition of two United States Environmental Protection Agency (EPA) advisory committees — the Science Advisory Board and the Clean Air Scientific Advisory Committee.
  • Employer challenges OSHA under nondelegation doctrineJones Day represents Allstates Refractory Contractors, LLC in challenging the United States Occupational Safety and Health Administration's (OSHA) statute as a violation of the nondelegation doctrine.
  • Jones Day secures Supreme Court decision for property owners blocking CDC eviction moratoriumJones Day successfully represented property owners challenging the Centers for Disease Control and Prevention's (CDC) nationwide moratorium on evictions.
  • U.S. Chamber of Commerce files amicus briefs in unemployment benefits casesJones Day filed amicus briefs on behalf of the Chamber of Commerce of the United States and other trade associations in cases challenging the decisions by state governors to end participation to accept federal supplemental unemployment benefits.
  • Drug manufacturer challenges HHS administrative dispute resolution ruleJones Day represents a drug manufacturer in litigation challenging a U.S. Department of Health and Human Services (HHS) rule providing for administrative resolution of disputes between drug manufacturers and certain “covered entities” eligible for discounted drug pricing under Section 340B of the Public Health Service Act.
  • Georgetown University announces partnership for comprehensive energy P3 agreement with ENGIEJones Day represented Georgetown University in connection with the negotiation and commercial close of a comprehensive energy P3 agreement with ENGIE.
  • National Association of Realtors files amicus curiae brief in Fifth Amendment takings challenge to rent controlJones Day filed an amicus curiae brief in the Second Circuit on behalf of the National Association of Realtors in a case challenging the constitutionality of New York’s Rent Stabilization Law (“RSL”).
  • Drug manufacturer challenges HHS guidance on Section 340B drug pricingJones Day represents a drug manufacturer in litigation challenging the U.S. Department of Health and Human Service’s (HHS) advisory opinion under Section 340B of the Public Health Service Act.
  • Drug manufacturer intervenes in litigation to defend Section 340B drug pricingJones Day represents a drug manufacturer in litigation challenging its discounted drug pricing practices under Section 340B of the Public Health Service Act.
  • Manufacturers challenge tariffs in Court of International TradeJones Day represents several manufacturers challenging tariffs promulgated by the United States Trade Representative pursuant to Section 301 of the Trade Act.
  • National political campaign obtains appellate stay of discovery in TCPA litigationJones Day represented a national political campaign in obtaining an emergency stay of discovery pending appeal in a Telephone Consumer Protection Act (TCPA) lawsuit.
  • Telehealth provider obtains dismissal of complaint before state regulatory boardJones Day represented a telehealth provider in responding to a complaint filed with a state regulatory board.
  • U.S. Chamber of Commerce files amici curiae brief in OSHA mandamus caseJones Day filed an amici curiae brief on behalf of the United States Chamber of Commerce and other trade associations opposing a mandamus petition which sought to order OSHA to adopt an emergency temporary standard during the COVID-19 pandemic.
  • Telemedicine provider expands telehealth programming in response to COVID-19 public health crisisJones Day represented a telemedicine provider in their expansion of telehealth programming in response to the COVID-19 public health crisis.
  • Integer Holdings Corporation develops employee programming to mitigate the spread of COVID-19 within the workplaceJones Day represented Integer Holdings Corporation during the COVID-19 crisis to develop appropriate protocols and policies for implementing an employee temperature screening program, a face covering program, and return to work policies for employees suffering from COVID-19, respiratory illness, or exposure to individuals with COVID-19.
  • 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.

    • 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.

    其他出版物

    • 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)

    演讲

    • January 27, 2022
      A View From Washington: Regulatory and Legislative Developments During the Biden Administration
    • January 12, 2022
      U.S. Government Records & Disclosure
    • December 10, 2021
      Vaccine Mandates and the Workplace – Legal and Practical Considerations for Employers
    • October 2021
      Litigation Strategy Forum for Administrative State Reform
    • October 2021
      Recent Trends in ESG Litigation
    • September 2021
      Litigation Update: Alabama Ass'n of Realtors v. HHS
    • September 2021
      Alabama Association of Realtors, et al v. DHHS
    • September 2021
      The 'Cancel the Rent Movement' - Conversation with the Plaintiff and Litigator that won the Eviction SCOTUS Case
    • September 2021
      Judges, SCOTUS, and the Shadow Docket
    • June 3, 2020
      Return to Workplace Legal Considerations U.S. Companies need to know Post-COVID-19
    • 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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