Selected Appellate Experience
Mr. Ho has served as lead appellate counsel in numerous state and federal cases, including in the First, Second, Fourth, Sixth, 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
•Ohio v. American Express Co., No. 16-1454 (2018)
•Janus v. AFSCME, No. 16-466 (2018)
•Universal Health Services v. United States ex rel. Escobar, No. 15-7 (2016)
•Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016)
•Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016)
•American Express Co. v. Italian Colors, 133 S. Ct. 2304 (2013)
•Amgen, Inc. v. Connecticut Retirement Plans, 133 S. Ct. 1184 (2013)
•CSX Transp., Inc. v. McBride, 131 S. Ct. 2630 (2011)
•Bruesewitz v. Wyeth, 131 S. Ct. 1068 (2011)
•Mississippi v. City of Memphis, 130 S. Ct. 1317 (2010)
•14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009)
•Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007)
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
•Wood v. Allergan, No. 17-2191 (2d Cir.) (pending)
•Juanita Hempstead v. Pfizer, Inc., No. 17-1140 (4th 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
Serve as co-lead counsel and Represent multiple individual plaintiffs in a major antitrust litigation against the two leading providers of dealer management systems, CDK Global, LLC and The Reynolds & Reynolds Company. See In re Dealer Management Systems Antitrust Litigation, MDL No. 2817 (N.D. Ill.)
Represent Viamedia Corporation in an antitrust suit alleging unlawful tying and exclusive dealing in the local cable advertising representation market. The Court has denied Comcast’s motion to dismiss and the parties have completed discovery. See Viamedia Inc. v. Comcast Corp., No. 16-cv-05486 (N.D. Ill.)
Represent relator in federal and state FCA litigation involving fraudulent upcoding at Florida skilled nursing facilities. Argued summary judgment motion and Daubert motions. Trial resulted in judgment of almost $350 million. See United States ex rel. Ruckh v. Genoa Healthcare, LLC, No. 11-1303 (M.D. Fla.). Currently lead counsel on appeal.
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
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)
Presenter, Fifth Circuit Bar Association Appellate Advocacy Seminar, “The Attorney’s Perspective on Briefs and Oral Argument: Substantive Tips on Brief Writing and Oral Argument” (Oct. 2, 2017), https://www.baffc.org/about/events/2017-appellate-advocacy-seminar/
Panelist, Perrin Class Action Conference, “Supreme Court Update,” (May 31, 2017), https://www.perrinconferences.com/pdf/Perrin_Class_Action_Litigation_Brochure_2017_Final14.pdf
Panelist, American Conference Institute Class Action Conference, “The Use of Representative or Statistical Evidence to Substantiate Class Claims Post-Tyson Foods v. Bouaphakeo” (Apr. 3, 2017), https://www.americanconference.com/defending-managing-class-actions/agenda/use-representative-statistical-evidence-substantiate-class-claims-post-tyson-foods-v-bouaphakeo-examining-fallout-critical-nuances-consider-developing-liti/
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/bridgeportce/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)
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
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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