Frederick R. Yarger

Biography

Cases

Appeals

• Won on an issue of first impression before the Colorado Court of Appeals for an insurance company. The published opinion states that administrative determinations in workers' compensation proceedings do not have preclusive effect in subsequent bad faith cases, protects the efficiency of administrative proceedings, and preserves employers' ability to present complete defenses at trial.
• Representing an oil and gas company as post-trial and appellate counsel to defend a verdict of over $40 million in a complex commercial dispute involving an agreement to develop assets in Latin America.
• Representing an insurance company in the appeal of a favorable verdict in a bad faith case raising questions of first impression under Colorado insurance law.
• Representing a nationwide appliance retail and repair company to challenge an unfavorable jury verdict in post-trial and appellate proceedings.
• Representing a medical device company in post-trial and appellate proceedings in a case presenting questions of first impression under Colorado products liability law.
• Representing one of the nation's largest retirement-plan providers in an appeal to the Tenth Circuit.
• Representing rural electric cooperatives in exit fee disputes before two federal appellate courts.
• Representing a petroleum company in the Colorado Supreme Court in a commercial dispute presenting novel questions of state law governing oil and gas leases.
• Represented a national homebuilding company before the Colorado Supreme Court in a case presenting questions of first impression under the economic loss rule.
• Won in the First Circuit for a major shipping logistics company to affirm dismissals of wage theft and other claims under state and federal law.
• Won in the Fourth Circuit for a major shipping logistics company to dispose of class action wage-and-hour claims.
• Successfully defended a favorable class certification ruling in the Ninth Circuit on behalf of a major shipping logistics company.
• Representing United Power, Inc., a Colorado electric distributor, in an appeal of an exit-fee dispute worth over $1 billion.
• Won in the Sixth Circuit for one of the world's leading kitchen and laundry appliance companies in a multimillion-dollar commercial licensing dispute.
• Successfully represented a major shipping logistics company in the Ninth Circuit to ensure that commercial cross-claims raised in a wage and hour class action would be resolved through arbitration.
• Prevailed in the Tenth Circuit for a European telecommunications company seeking discovery to support litigation concerning a multibillion-dollar joint venture.
• Successfully defended Colorado's new congressional map to the Colorado Supreme Court in a fast-paced appeal. The appeal raised complicated, novel questions of constitutional law, and was the first time the court applied Colorado's new laws governing congressional redistricting. Over a dozen parties filed briefs, and argument was held less than two weeks after the Commission adopted the map.
• Won before the Colorado Supreme Court in a fast-moving original jurisdiction case for the Colorado Independent Congressional Redistricting Commission. The decision sets critical precedent affirming the Commission's constitutional independence to draw boundaries for Colorado's eight congressional districts before the 2022 election. WTO prevailed for the Commission against Colorado's legislature, governor, attorney general, and secretary of state.
• Assisting a major shipping logistics company to develop a nationwide appellate strategy for class action wage-and-hour and mass action FLSA claims. Leading post-trial and appellate proceedings in two cases in California state court and the Ninth Circuit.
• Leading a Tenth Circuit appeal for a land conservation entity in a property dispute with a local government that raises legal and constitutional issues for western landowners and conservation groups.
• Served as appellate preservation and consulting counsel for a recreation company in a catastrophic injury case raising unsettled legal issues affecting vicarious liability, apportionment of fault, and statutory limits on noneconomic damages.
• Represented a temporary staffing agency in the appeal of the largest individual personal injury judgment in Colorado history.
• Represented a national market leader in cannabidiol-based wellness products in an emergency petition to the Colorado Supreme Court to reduce the scope of damages available at an impending breach-of-contract trial.
• Represented an airport fixed-based operator as amicus counsel in a Colorado Supreme Court appeal affecting tax liability for lessees on public land across the state.
• Represented nationally recognized law professors in filing an amicus brief to the Texas Supreme Court explaining the contours of the "ministerial exception" to liability for churches in cases in which clergy sue for work-related torts or other claims.
• Won a unanimous decision in Colorado's highest court preserving the state's longstanding regulatory approach for the oil and gas industry.
• Successfully represented a prospective government contractor as part of a multi-firm team in the appeal of a government bid protest worth tens of billions of dollars.
• Successfully preserved a landmark state law reforming tenure policies for public school teachers.
• Won an emergency, eve-of-trial appeal to the Colorado Supreme Court to preserve core legal claims in a consumer protection case with tens of millions of dollars in potential monetary awards.
• On remand from the U.S. Supreme Court, won a judgment upholding sales tax collection rules for e-commerce companies. That judgment set the stage for a Supreme Court decision that fundamentally reshaped e-commerce tax law across the country. Also authored a Supreme Court amicus brief cited in the majority's opinion.
• Won a unanimous, precedent-setting decision in the Colorado Supreme Court that required the nation's largest consumer litigation finance company to abide by state lending laws.

U.S. Supreme Court

• Represented a pro-bono client in certiorari-stage proceedings in the U.S. Supreme Court to challenge a criminal conviction based on emerging constitutional law.
• Represented a group of state legislative leaders in filing a U.S. Supreme Court amicus brief in a major election law case that will shape state-level election policy for future elections.
• Represented a major car maker in certiorari-stage proceedings in the U.S. Supreme Court, preserving a favorable lower court decision that precluded liability for a class of employment discrimination claims.
• Argued before the U.S. Supreme Court in defense of Colorado's anti-discrimination laws in a closely-watched case that the national media described as a "blockbuster."
• Argued before the U.S. Supreme Court in a case involving administration of an interstate water compact governing a river system that provides drinking water and irrigation to over six million people in three U.S. States and Mexico.
• Won a complete victory in the U.S. Supreme Court in an interstate pollution case claiming hundreds of millions of dollars in damages. Convinced the U.S. Department of Justice to file a brief supporting the client's position.
• Won a U.S. Supreme Court ruling that overturned a Colorado Supreme Court decision severely restricting local governments from pursuing school choice policies.
• Argued a challenge to state rules governing refunds of criminal fees. Helped lead a subsequent legislative effort to make Colorado a leader in granting due process rights to criminal defendants who seek refunds after reversal of their convictions.
• Argued before the U.S. Supreme Court in a case challenging jury secrecy rules that dictate when a verdict is subject to challenge in claims of individual juror bias. National media called this a "top five" case of the term.
• Successfully defended Colorado's marijuana regulatory framework before the U.S. Supreme Court and the Tenth Circuit, defeating federal preemption claims that would have prevented states from tightly regulating the supply side of the multibillion-dollar marijuana market. Persuaded the U.S. Department of Justice to support the client's position before the Supreme Court.
• Won a ruling from the U.S. Supreme Court that vacated an adverse decision of the Tenth Circuit and opened up new legal arguments for a client on remand to the trial court.

Trials & Litigation

• Representing a telecommunications company in a high-value commercial dispute implicating a nationwide communications network.
• Serving as appellate preservation counsel to an insurance company for the federal jury trial of a multimillion-dollar dispute concerning alleged construction defects in a large residential development.
• Served as appellate preservation counsel to a natural resources company for a jury trial in a commercial dispute with tens of millions of dollars in claimed damages.
• Representing a client in a commercial dispute involving a technology platform intended to facilitate quality control for consumer products.
• Represented a leading ridesharing company as co-lead trial counsel in catastrophic injury cases with millions of dollars in claimed damages.
• Represented a wholesale energy company in a multi-jurisdictional dispute with multiple counterparties, preserving tens of millions of dollars of contract value and a key long-term business objective for the client.
• Advised an oil and gas company on state law regulatory issues that threatened the client's assets in a major oil and gas producing region.
• Advised a national distribution company on litigation strategy concerning federal regulations governing the distribution and sale of electronic tobacco products.
• Served as appellate preservation counsel in a First Amendment case challenging a major university's policies regarding the recognition of religious student groups.
• Won preliminary and permanent injunctions after a contested evidentiary hearing in trial court, invalidating federal oil and gas regulations that duplicated state rules and hindered resource development.
• Served as counsel for Colorado in a multistate coalition that won the first injunction against the federal "Waters of the United States Rule."
• Defended a public company auditor at trial and on appeal in a proceeding brought by the United States Securities and Exchange Commission.
• Represented the patent holder of an antidepressant in a multistate class action raising antitrust and consumer protection claims.
• Represented a domestic company seeking to protect and enforce an international marketing and distribution agreement in simultaneous actions filed in Florida and California federal trial courts.

Publications & Speaking Engagements

Presentations

• Co-Presenter, "Appellate Preservation in State & Federal Colorado Courts," Denver City Attorney's Office, (August 9, 2023).
• "The Power of Plain Language in an Oil and Gas Lease: A Case Study," Co-Presented with Jamie Jost of Jost Energy at the 49th Annual Fall Land Institute of the Denver Association of Professional Landmen (November 3, 2022).
• "A Pandemic, Redistricting, and an Election Year," Co-Presenter (June 21, 2022).
• "Navigating the New Normal in a Changed Oil & Gas Climate,"Co-Presenter, with Jamie Jost and Kelsey Wasylenky of Jost Energy Law, (January 21, 2021).
• "Colorado Bar Association CLE: "Friend or Foe: Amicus Briefs in Colorado's Appellate Courts," Co-Moderated, Panel Discussion by Colorado Supreme Court Justices Melissa Hart and William Hood, III and Chief Judge Steve Bernard of the Colorado Court of Appea
• "Federalist Society Nationwide Teleforum: Representing Colorado," A Conversation with Solicitor General Eric Olson and Former Solicitor General Fred Yarger, (April 2020).
• "COVID-19: Legal Implications of Colorado's Stay-at-Home Order," presentation for the Centennial Institute, (March 2020).
• "Let Them Speak Cake: Expansion of Free Speech and Masterpiece Cakeshop," Keynote Speaker at the Federal Bar Association Civil Rights Section, (March 30, 2018).
• "Colorado at the United States Supreme Court," presented to the American Bar Association, Appellate Practice Regional Meeting, (March 6, 2018).
• Masterpiece Cakeshop: Interview with Colorado Solicitor General Fred Yarger, presented on The University of Chicago Law Review Podcast, 2, (January 13, 2018).

Articles

• "Demystifying Colorado's Atypical Civil and Administrative Appeals," Co-Author, Colorado Lawyer, (January/February 2023).
• "Take a Page From The Onion: A General Counsel's Guide to Effective Amicus Advocacy," Co-Author, Corporate Compliance Insights, (October 19, 2022).
• "What Proposed Contractor Rule May Mean For Wage Litigation," Co-Author, Law360 (August 24, 2022).
• "Supreme Court Reins In, But Does Not Overturn, SEC's Disgorgement Authority,"Co-Author, New York Law Journal, (June 2020).
• "What to Consider Before Filing for a Rule 57 Speedy Hearing," Co-Author, Law360 Expert Analysis, (September 12, 2019).
• "Trinity Lutheran Church v. Comer: The justices reach broad agreement, but on a narrow question," SCOTUSblog, (June 27, 2017).

Press

• "Governor Wants Colorado High Court to Steer Clear of Tax Measure," Law360, July 5, 2023.
• Rise of Nuclear Verdicts Drives Appellate Strategy: Yarger, Benz Featured in The AmLaw Litigation Daily
• Jessica Scott, Frederick Yarger Comment on DOL Proposed Rule on Contractors
• "FedEx Ground Urges 1st Circ. To Affirm Tax Case Dismissal," Law360, August 15, 2022.
• "Attorneys Guide Congressional Redistricting Commission Through 'Unchartered Waters,'" Law Week Colorado, November, 2021.
• "6th Circ. Stands By Whirlpool's Win In Royalty Dispute," Law360, November 5, 2021.
• Quoted, "First Fire, Then Floods: Landowners Deal with Disasters' Lingering Impacts," The Daily Sentinel, October 24, 2021.
• Quoted, "Ranch gets backing from ag-land interests in challenging ruling declaring roads public," The Daily Sentinel, July 14, 2021.
• Chambers USA: WTO "Acts Totally with the Client's Interest at Heart."
• WTO Partner speaks with Colorado Politics about a recent court decision approving web-based remote trials during the pandemic
• Colorado Politics Quotes WTO Partner Fred Yarger on Federal Ruling on COVID-19 and Religious Freedom
• Former Colorado Solicitor General Fred Yarger Joins Wheeler Trigg O'Donnell

Other Experience

Legal Memberships, Activities, and Honors

Personal Interests