Shay Dvoretzky

Recognized nationally as a leading appellate litigator, Mr. Dvoretzky has argued 19 cases in the Supreme Court. He has been one of the most active practitioners before the Supreme Court in recent years, arguing three cases during the Court’s 2022 Term and two more at the start of the Court’s current Term. Mr. Dvoretzky’s recent Supreme Court victories include:

• Merck v. Albrecht, in which he persuaded the Court to hold that a judge, not a jury, should assess a federal preemption defense, and should do so using ordinary, not heightened, legal standards (The American Lawyer discussed the case in naming Mr. Dvoretzky a 2019 Litigator of the Year, noting that he has “paved his way through the U.S. Supreme Court and federal courts of appeals with numerous unanimous wins.”)
• GE Energy v. Outokumpu, in which he convinced the Court to hold that international arbitration agreements under the New York Convention should be treated on an equal footing with domestic ones under the Federal Arbitration Act (including as to enforcement by nonsignatories)
• Rotkiske v. Klemm, in which he persuaded the Court to reject a presumption applying the discovery rule to federal statutes of limitation
• Caniglia v. Strom, in which he persuaded the Court to unanimously hold that the so-called “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home

Mr. Dvoretzky has briefed and argued dozens of cases across virtually all federal courts of appeals. His work has spanned many substantive areas, including constitutional law, administrative law, antitrust, arbitration, bankruptcy, labor and employment, ERISA, tax, telecommunications, securities, preemption, energy, intellectual property, and criminal defense, as well as various complex statutory questions. He also leverages his appellate experience to counsel clients on key strategic issues at the trial level, and to brief and argue dispositive motions with an eye toward appeal. Mr. Dvoretzky’s recent wins in the federal courts of appeals include:

• Eaton Corp. v. Commissioner, in which he secured a groundbreaking victory for Eaton Corporation in Sixth Circuit transfer-pricing cross-appeals with more than $350 million at stake, creating important precedent for other corporations facing retroactive action by the IRS
• Hunstein v. Preferred Collection & Management Services, in which he convinced the en banc Eleventh Circuit, on behalf of Preferred Collection & Management Services, to order the district court to dismiss the plaintiff’s Fair Debt Collection Practices Act claim for lack of Article III standing in a first-of-its-kind opinion after the Supreme Court’s decision in TransUnion LLC v. Ramirez (2021)
• Airlines for America v. City & County of San Francisco, in which he persuaded the Ninth Circuit to hold that civil penalties can make government action regulatory and subject it to federal preemption, and to remand the case for the district court to consider Airlines for America’s preemption arguments
• American Cruise Lines v. United States, in which he secured a victory for Viking USA LLC in the Second Circuit, which held that the U.S. Maritime Administration reasonably determined that a lease of a vessel allowed Viking to operate cruises along the Mississippi River, and that the agency complied with its notice-and-comment requirements — a question of first impression in the courts of appeals
• Macomb County Employees’ Retirement System v. Align Technology, in which he obtained a complete victory for Align Technology before the Ninth Circuit in an appeal involving a securities fraud class action brought by Align stockholders

Before joining Skadden, Mr. Dvoretzky was a partner in the appellate practice at another global law firm. Previously, he clerked for Justice Antonin Scalia of the U.S. Supreme Court and Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit.