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Derek T. Ho

Partner
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  • fx: 202.326.7999
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Mr. Ho is a partner in the firm with nearly two decades of experience representing both plaintiffs and defendants in high-stakes, complex commercial litigation. 

Mr. Ho has been widely recognized for his success in cutting-edge business litigation matters.  His work for plaintiffs has helped generate more than $1 billion in settlements, while his work for defendants has resulted in dismissal of claims asserting multiple billions of dollars in damages.  He has been named a Leading Plaintiff Financial Lawyer by Lawdragon, and in July 2017, Global Competition Review named Mr. Ho a Litigator of the Week for his work in obtaining a rare preliminary injunction in a federal antitrust case.  Citing his extensive antitrust litigation experience, the U.S. District Court for the Northern District of Illinois appointed Mr. Ho MDL Co-Lead Counsel in In re Dealer Mgmt. Sys. MDL, MDL No. 2817 (N.D. Ill.) 

Mr. Ho also has an active appellate practice.  He has argued more than 20 cases in federal and state appellate courts.  He has also been the principal author of numerous merits and amicus briefs in the U.S. Supreme Court.

Mr. Ho maintains an active pro bono practice focused on civil rights litigation.  He also serves on the Board of Trustees of The Roxbury Latin School and on the Board of Directors of the Lawyers’ Committee on Civil Rights Under Law. 

Noteworthy Representations

Mr. Ho has particular expertise and experience in class actions and MDL proceedings, antitrust law, the False Claims Act, and fiduciary litigation.  Mr. Ho also has unparalleled experience representing litigation finance firms and litigants that receive litigation funding.

Class Action / MDL

  • Represented clients in three of the 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).
  • Served as lead appellate counsel hired by Plaintiffs’ Steering Committees to represent thousands of plaintiffs in several large MDLs.  
  • Represented numerous clients at the district court level, both supporting and opposing class certification.

Antitrust

  • Serve as MDL co-lead counsel and interim class counsel in a major antitrust MDL 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. See Viamedia Inc. v. Comcast Corp., No. 16-cv-05486 (N.D. Ill.)
  • At the Supreme Court, helped secure victories for his clients in three seminal antitrust cases, Ohio v. American Express Co., 138 S. Ct. 2274 (2018), American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 
  • Successfully represented defendants in criminal antitrust investigations by the Department of Justice, helping to obtain rare non-prosecution agreements in two recent cases, and he regularly provides antitrust counseling to prominent U.S. companies.

False Claims Act

  • Represent relator in federal and state FCA litigation involving fraudulent upcoding at Florida skilled nursing facilities.  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. 
  • Successfully represented the relators in Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989 (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).
  • 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.  

Litigation Funding

  • 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 Viamedia, Inc. v. Comcast Corp., No. 16-C-5486, 2017 WL 2834535 (N.D. Ill. 2017); 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).

Fiduciary Law

  • Represented trustees in litigation 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.  Court of Chancery ruled in favor of the firm’s clients after two-phase trial.  Mr. Ho also successfully argued the appeal of that judgment. 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). 

U.S. Supreme Court Merits Cases

  • Ohio v. American Express Co., 138 S. Ct. 2274 (2018)
  • Janus v. AFSCME, 138 S. Ct. 2448 (2018)
  • Universal Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (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, 136 S. Ct. 2271, 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, 133 S. Ct. 2612, 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, 134 S. Ct. 1623. 
  • Represented distinguished UT alumni defending the University of Texas’s admissions program against Equal Protection challenge in Fisher v. University of Texas, S. Ct. 2411.
  • 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.).

Speaking Engagements and Publications

Speaking Engagements

Panelist, Global Class Actions Symposium 2020, "Settlements of Global Disputes" (June 25, 2020), https://iclg.com/glgevents/global-class-actions-symposium-2020

Panelist, Third International Conference on International Mass Dispute Resolution, University of Haifa, “Establishing the Existence of a Class by Surveys and Statistics” (March 2019), https://lawers.club/

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 

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)

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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