Education

Harvard Law School, J.D., magna cum laude, 2001

  • Treasurer, Harvard Law Review, 2000-2001
  • Finalist, Ames Moot Court competition

Yale University, M.A., 1998

Harvard College, B.A., magna cum laude, 1996 

  • Phi Beta Kappa

Clerkship

Law Clerk, Justice David H. Souter, U.S. Supreme Court, 2002-2003

Law Clerk, Judge Michael Boudin, U.S. Court of Appeals, First Circuit, 2001-2002


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Derek T. Ho

Partner
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Mr. Ho is a partner in the firm specializing in appellate and complex commercial litigation.  Mr. Ho’s has particular expertise and experience in class actions and MDL proceedings, antitrust, False Claims Act, and fiduciary litigation.  Mr. Ho also has unparalleled experience representing litigation finance firms and litigants that receive litigation funding.

Noteworthy Representations

Mr. Ho represented clients in three of the U.S. Supreme Court’s most significant recent class action decisions, and prevailed in all three.  See Amgen Inc. et al. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184 (2013); American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013); Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016).  In addition to his appellate work, Mr. Ho has also represented numerous clients at the district court level, both supporting and opposing class certification. 

Mr. Ho also has extensive experience in antitrust litigation, on behalf of both plaintiffs and defendants.  At the Supreme Court, he helped secure victories for Bell Atlantic in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and for American Express in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013).  He currently serves as lead counsel to antitrust plaintiffs in Diesel eBooks, LLC v. Simon & Schuster, No. 16-726 (2d Cir.) (price fixing), and Lenox MacLaren Surgical Corp. v. Medtronic, Inc., Nos. 15-1500 & 16-1012 (10th Cir.) (monopolization).  He has also successfully represented defendants in criminal antitrust investigations by the Department of Justice, helping to obtain rare non-prosecution agreements in two recent cases. 

Mr. Ho successfully represented the relators in Universal Health Servs. v. United States ex rel. Escobar, No. 15-7, 2016 WL 3317565 (U.S. June 16, 2016), which affirmed the “implied false certification” theory of liability under the False Claims Act.  The Supreme Court’s decision vindicated Mr. Ho’s prior victory on behalf of the relator in New York v. Amgen Inc., 652 F.3d 103 (1st Cir. 2011).  Mr. Ho also has extensive trial-level experience in FCA cases.  His work for relators has helped generate more than $1 billion in settlements, while his work for defendants has resulted in dismissal of FCA claims asserting multiple billions of dollars in damages. 

Mr. Ho has successfully represented litigation finance companies in precedent-setting cases affecting the litigation finance industry.  In a string of victories, Mr. Ho helped establish the principle that communications between a litigant and a litigation funder are protected by the attorney-client privilege and/or work-product doctrine.  See In re International Oil Trading Co., 548 B.R. 825 (Bankr. S.D. Fla. 2016); Charge Injection Techs., Inc. v. E.I. DuPont De Nemours & Co., No. 07C-12-134-JRJ, 2015 WL 1540520 (Del. Super. Ct. Mar. 31, 2015); Devon IT, Inc. v. IBM Corp., No. CIV.A. 10-2899, 2012 WL 4748160 (E.D. Pa. Sept. 27, 2012).  Mr. Ho has also successfully defended against allegations that litigation funding violates state-law champerty and maintenance doctrines.  See Charge Injection Techs., Inc. v. E.I. DuPont De Nemours & Co., No. 07C-12-134-JRJ, 2016 WL 937400 (Del. Super. Ct. Mar. 9, 2016). 

Mr. Ho has deep expertise in trust and fiduciary law (e.g., agency, business judgment rule).  His victories include a trial win and affirmance by the Delaware Supreme Court in a high-profile family trust lawsuit.  See In re Trust for Grandchildren, No. 1165-VCN, 2011 WL 3444569 (Del. Ch. July 29, 2011), aff’d sub nom. Otto v. Gore, 45 A.3d 120 (Del. 2012).

Selected Appellate Experience

Mr. Ho has served as lead appellate counsel in numerous state and federal cases, including in the First, Second, Eighth, Tenth, and Eleventh Circuits, as well as state appellate and supreme courts.  He has also been the principal author of numerous merits and amicus briefs in the U.S. Supreme Court.

U.S. Supreme Court Merits Cases

    • Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007)
    • 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009)
    • Mississippi v. City of Memphis, 130 S. Ct. 1317 (2010)
    • Bruesewitz v. Wyeth, 131 S. Ct. 1068 (2011)
    • CSX Transp., Inc. v. McBride, 131 S. Ct. 2630 (2011)
    • Amgen, Inc. v. Connecticut Retirement Plans, 133 S. Ct. 1184 (2013)
    • American Express Co. v. Italian Colors, 133 S. Ct. 2304 (2013)
    • Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016)

    • Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016)

    • Universal Health Services v. United States ex rel. Escobar, No. 15-7 (2016)

U.S. Supreme Court Amicus Briefs

Represented administrative law professors supporting the United States in United States v. Texas, No. 15-674, defending the Obama Administrations “DAPA Memo” from challenge under the APA.   

Represented U.S. historians supporting the United States and other respondents in Shelby County v. Holder, No. 12-96, defending the constitutionality of § 5 of the Voting Rights Act. 

Represented political science professors supporting challengers to Michigan’s Proposition 2, which bans state universities from considering race in admissions.  See Schuette v. Coalition to Defend Affirmative Action v. Regents of Univ. of Michigan, No. 12-682.

Represented distinguished UT alumni defending the University of Texas’s admissions program against Equal Protection challenge in Fisher v. University of Texas, No. 11-345.

Represented industrial-organizational psychologists supporting the City of New Haven in Ricci v. DeStefano. Amicus brief was cited repeatedly by the dissent. See 129 S. Ct. 2658, 2689 (2010) (op. of Ginsburg, J.).

Lower Appellate Cases

    • Diesel eBooks, LLC v. Simon & Schuster, No. 16-726 (2d Cir.) (pending)
    • Lenox MacLaren Surgical Corp. v. Medtronic, Inc., Nos. 15-1500 & 16-1012 (10th Cir.) (pending)
    • Chapman v. Procter & Gamble Distributing LLC, 766 F.3d 1296 (11th Cir. 2014)
    • WFC Holdings v. United States, 728 F.3d 736 (8th Cir. 2013)
    • Otto v. Gore, 45 A.3d 120 (Del. 2012)
    • New York v. Amgen, Inc., 652 F.3d 103 (1st Cir. 2011)

Selected Trial Experience

Represent relator in federal and state FCA litigation involving fraudulent upcoding at Florida skilled nursing facilities.  Argued summary judgment motion and Daubert motions.  Trial scheduled for January 2017.  See United States ex rel. Ruckh v. Genoa Healthcare, LLC, No. 11-1303 (M.D. Fla.). 

In what has been hailed as an “important taxpayer victory,” represented Wells Fargo & Company in challenge to IRS subpoena seeking company’s “tax accrual workpapers” on the ground that the workpapers are protected by the work-product doctrine.  Conducted direct examination of Wells Fargo’s lead expert and cross-examined the government’s expert at multi-day evidentiary hearing.  The district court held that the measurement and analysis contained in those papers was protected from discovery.  See Wells Fargo & Co. v. United States, 2013 WL 2444639 (June 4, 2013).

Trial counsel in Delaware Court of Chancery case involving the effect of a strategic adult adoption on the distribution of principal under a trust, as well as a dispute over the terms of the governing trust instrument.  Conducted direct examination of multiple witnesses, including all of our clients’ expert witnesses, during two-phase trial.  Court of Chancery ruled in favor of the firm’s clients on all issues.  See In re Trust for Grandchildren, No. 1165-VCN, 2011 WL 3444569 (Del. Ch. July 29, 2011).  Also represented co-trustees in related litigation, which settled on favorable terms.

Represented relator in case alleging that Amgen, Inc. violated federal and state False Claims Acts by causing the submission of fraudulent claims to Medicare and Medicaid for “overfill” amounts in vials of its flagship anemia drug.  Successfully defeated multiple motions to dismiss, motion for judgment on the pleadings, and motion for summary judgment.  Took numerous depositions.  Case settled just prior to trial, resulting in criminal fines and civil damages of more than $700 million.  See http://www.taf.org/Amgen-Westmoreland-PR.pdf.

Represented Bank of New York Mellon in lawsuits alleging that BNYM violated federal mail and wire fraud laws, state False Claims Acts, and fiduciary and contractual duties by overcharging custody customers for foreign-exchange services.  Successfully obtained dismissal of FCA claims in Virginia and California alleging billions of dollars in damages.  

Represented relator in federal False Claims Act involving failure to pay natural gas royalties to the United States.  Conducted numerous depositions.  Briefed and argued discovery and other motions.  Case resulted in settlements totaling more than $275 million by major natural gas manufacturers, including ExxonMobil, ChevronTexaco, and BP. 

Selected Publications and Speaking Engagements

Publications

Co-author:  Penalizing Tax Petitions:  Why the Erroneous Refund Penalty in Section 6676 Violates Taxpayers’ First Amendment Rights, The Tax Lawyer, Vol. 68, No. 3 (Spring 2015)

Note, Restructuring the Modern Treaty Power, 114 Harv. L. Rev. 2478 (2001)

Recent Case, Made in the USA Foundation v. United States, 113 Harv. L. Rev. 1234 (2000)

Speaking Engagements

Panelist, Perrin Class Action Conference, “Supreme Court Update,” (May 17, 2016), https://www.perrinconferences.com/pdf/Perrin_Class_Action_Litigation_Brochure_2016_Final05.pdf

Panelist, Bridgeport CLE Conference, “Consumer Class Action Litigation” (January 8, 2016), http://bridgeportce.com/bridgeportce2015/live-programs/consumer-class-action-litigation-conference.html

Co-Chair, LSI Conference on “Class Actions and Alternatives for Resolving Aggregate Claims” (June 17-18, 2013), http://www.lawseminars.com/webpdfs/13CLASSMA.pdf

Panelist, CLE International Conference, “Class Actions:  The U.S. Supreme Court Speaks” (Oct. 3-4, 2013), http://www.cle.com/upcoming/PDFs/WDCCLA13.pdf

Invited Guest Speaker, Georgetown University Law Center (2014, 2015), Harvard Law School (2014)

Panelist, Strafford CLE webinar on “Defeating Rule 23(b)(3)'s Predominance Requirement Using Defenses and Counterclaims” (Aug. 25, 2015), https://www.straffordpub.com/products/defeating-rule-23-b-3-s-predominance-requirement-using-defenses-and-counterclaims-2015-08-25