Brett A.Shumate

Partner

Washington + 1.202.879.3835

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

Brett has successfully challenged a broad range of government actions. He represented property owners in blocking the federal eviction moratorium in the United States Supreme Court. He represented a pharmaceutical manufacturer in an appeal enjoining an enforcement action involving drug prices. He overturned a Food and Drug Administration (FDA) decision violating due process principles. He stopped the Federal Election Commission (FEC) from concealing its voting records in enforcement matters. He has handled numerous appeals challenging Federal Communications Commission (FCC) orders, including the FCC's net neutrality rules.

Brett regularly represents clients in litigation arising under the Administrative Procedure Act (APA); Section 340B of the Public Health Service Act (PHSA); Food, Drug, and Cosmetic Act (FDCA); Medicare Act; Inflation Reduction Act (IRA); Hatch-Waxman Act; Consumer Product Safety Act (CPSA); Occupational Safety and Health (OSH) Act; National Labor Relations Act (NLRA); Federal Election Campaign Act (FECA); Federal Advisory Committee Act (FACA); Freedom of Information Act (FOIA); Securities Exchange Act; and Tariff Act. He also advises clients in matters involving climate change, ESG (environmental, social, and governance), trade, telecommunications, patents, and banking laws.

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.

Experience

  • Financial institutions support challenge to CFPB's Supervision and Examination ManualJones Day represented the Bank Policy Institute, America's Credit Unions, and the American Financial Services Association in filing an amicus brief in the U.S. Court of Appeals for the Fifth Circuit supporting the U.S. Chamber of Commerce and the American Bankers Association's challenge to the Consumer Financial Protection Bureau's (CFPB) 2022 revisions to its Supervision and Examination Manual.
  • Nonprofit secures D.C. Circuit decision affirming dismissal of novel citizen suit under Federal Election Campaign ActIn a case of first impression, Jones Day successfully represented a nonprofit group in an appeal of a dismissal of a citizen suit under the Federal Election Campaign Act.
  • Patent owner successfully challenges FDA regulatory review determinationJones Day successfully represented 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 supports takings challenge to eviction moratoriumJones Day filed an amicus curiae brief in the U.S. Court of Appeals for the Federal Circuit on behalf of the National Association of Realtors in a Takings Clause case brought by rental property owners against the federal government to obtain just compensation for losses attributable to the Centers for Disease Control and Prevention's (CDC) nationwide moratorium on evictions.
  • Drug manufacturer challenges state 340B drug pricing lawJones Day represents a drug manufacturer in litigation challenging a state law requiring manufacturers to deliver prescription drugs steeply discounted under the federal 340B program to commercial pharmacies whenever requested by the healthcare providers entitled to receive those discounts.
  • U.S. Chamber of Commerce, coalition challenge OSHA Walkaround Inspection RuleJones Day filed a complaint on behalf of a coalition of industry groups, led by the U.S. Chamber of Commerce, challenging the Occupational Safety and Health Administration's (OSHA) Worker Walkaround Representative Designation Process rule.
  • Business Roundtable urges court to vacate SEC's climate disclosure ruleJones Day represented Business Roundtable in filing an amicus brief in the U.S. Court of Appeals for the Eight Circuit challenging the Securities and Exchange Commission's (SEC) climate disclosure rule.
  • Real estate industry welcomes Supreme Court's correction of Fifth Circuit decision threatening property rightsJones Day filed an amicus brief in the Supreme Court on behalf of the real estate industry in a challenge to the Fifth Circuit’s ruling that property owners could not sue Texas for flooding their land because no federal cause of action covered their case.
  • Real estate industry persuades Supreme Court that legislative permitting exactions are subject to Takings Clause scrutinyJones Day filed an amici curiae brief in the U.S. Supreme Court on behalf of the real estate industry in a case challenging a California court’s ruling that legislative permitting exactions are not subject to Takings Clause scrutiny.
  • Exxon Mobil pursues declaratory judgment action against shareholder proposalJones Day is representing Exxon Mobil Corporation in seeking a declaratory judgment that it may exclude from its proxy statement under SEC Rule 14a-8 a shareholder proposal from activist organizations Arjuna Capital and Follow This that calls for targets to reduce Scope 1, 2, and 3 greenhouse gas emissions.
  • Former New York Superintendent of Insurance files amicus curiae brief in First Amendment caseJones Day filed an amicus curiae brief in the U.S. Supreme Court on behalf of James P. Corcoran, the former New York State Superintendent of Insurance, in a First Amendment challenge to alleged conduct by the former Superintendent of the New York Department of Financial Services.
  • Leading trade associations submit comments on FSOC proposalsJones Day drafted comment letters for several leading financial services and business trade associations in response to Financial Stability Oversight Council (FSOC) proposals relating to the non-bank systemic risk designation process.
  • Heritage Action for America successfully challenges FEC's concealment policyJones Day successfully represented Heritage Action for America in challenging a policy adopted by the Federal Election Commission to deliberately conceal from the public and courts the FEC Commissioners' votes deadlocking on whether administrative complaints warranted agency enforcement efforts.
  • BMS challenges Inflation Reduction ActJones Day filed a complaint on behalf of a pharmaceutical manufacturer, Bristol Myers Squibb Company ("BMS"), challenging the constitutionality of the Inflation Reduction Act ("IRA").
  • Real estate industry trade associations file amicus curiae briefs challenging New York rent control lawJones Day filed amicus curiae briefs in the U.S. Supreme Court on behalf of a coalition of real estate industry trade associations urging the Court to hear two cases challenging the constitutionality of New York’s Rent Stabilization Law (“RSL”).
  • National Association of REALTORS® files Supreme Court amicus brief in takings caseJones Day filed an amici curiae brief in the Supreme Court on behalf of the real estate industry in a Takings Clause case challenging Minnesota's tax-foreclosure law, which allows the government to seize a homeowner's property to satisfy a government debt and keep any surplus from the sale in excess of the debt owed as a windfall.
  • U.S. Chamber of Commerce files amicus brief challenging Consumer Product Safety Commission ruleJones Day filed an amicus brief in the D.C. Circuit on behalf of the U.S. Chamber of Commerce in a case challenging the Consumer Product Safety Commission's recent mandatory rule regarding custom window coverings.
  • Sanofi successfully challenges HHS enforcement of Section 340B drug pricing statuteJones Day successfully represented Sanofi in litigation challenging the U.S. Department of Health and Human Services' (HHS) enforcement action under Section 340B of the Public Health Service Act.
  • Telecommunications company engages with FCC rulemaking under Infrastructure ActJones Day represents a national telecommunications company in connection with the Federal Communications Commission’s proposed rulemaking on digital discrimination under the Infrastructure Investment and Jobs Act.
  • Drug manufacturer obtains dismissal of Section 340B administrative dispute resolution claimJones Day successfully represented a drug manufacturer in obtaining dismissal of an administrative dispute resolution (“ADR”) claim alleging that the manufacturer had overcharged certain "covered entities" eligible for discounted drug pricing under Section 340B of the Public Health Service Act.
    • View All

    November 2024 Alert

    D.C. Circuit Finds Council on Environmental Quality's NEPA Regulations Are Unenforceable

    July 2024 Alert

    Supreme Court Expands Window to Challenge Federal Regulations Under APA

    July 2024 Alert

    Supreme Court Overrules Chevron Deference

    May 2024 Commentary

    Canadian Drug Importation May Undermine Intellectual Property Protection

    MAY 2024 Alert

    Delegation Dilemma: CFTC Rule Allows Staff to Circumvent Notice and Comment Rulemaking

    February 2024 Commentary

    OCC Proposal and Policy Statement on Bank Mergers Could Freeze the Banking Industry in Place

    FEBRUARY 2024 Alert

    SEC Rejects Call to Alter "No Admit/No Deny" Settlement Rule

    January 2024 Commentary

    What About the Kitchen Sink? FSOC Plans Even More in 2024

    December 2023 Alert

    New FCC Rule Affects Consumer Consent for Robocalls and Robotexts

    November 2023 Alert

    DOJ's Immigration-Employment Program Faces Headwinds Amidst Milestone Settlement
    View All

    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)

    Additional Speaking Engagements

    • September 20, 2024
      How to Sue The Government—And Win!
    • September 19, 2024
      Protecting Property Rights Through Regulatory Litigation
    • April 16, 2024
      Is Humphrey’s Executor still relevant?
    • April 10, 2024
      Protecting Real Estate Owners and Operators Against Emerging Regulatory Risks: Junk Fees, Credit, Collection, and More
    • February 4, 2023
      Post-Pandemic Legal Landscape and the Next Crisis
    • October 13, 2022
      National Association of Realtors Legal Education Seminar: Constitutional Law Keynote: Takings Challenges and Cases to Watch
    • July 13, 2022
      Federal Agency ESG-Related Rulemakings
    • 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

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