Eric N. Heyer
Eric is a partner in the firm’s Business Litigation practice group and leads the firm’s extensive and multi-disciplinary E-Cigarette and Vaping Industry practice. Eric started with Thompson Hine as a summer associate and has spent all but two years of his career at the firm.
Eric is a trial attorney who has extensive experience advising clients and litigating cases relating to actions by federal government agencies under the Administrative Procedure Act. Eric’s litigation experience encompasses a broad range of matters, including constitutional challenges to state legislation and administrative actions, contract disputes, business torts, employment and non-compete matters, qui tam claims, unfair trade practices and consumer protection act claims, insurance claims, trademark, copyright, trade secret, and patent litigation, and representation of federal government employees in disciplinary proceedings. He has extensive experience trying claims in jury and bench trials in federal and state courts around the country, as well as in private arbitrations. Eric has conducted jury trials and arbitrations on fraud claims; breach of contract claims, including those arising out of breaches of noncompetition and confidentiality agreements; veil-piercing claims; claims regarding the fiduciary obligations of current and former employees and agents; warranty claims; and age and race discrimination claims.
As the leader of the firm’s E-Cigarette and Vaping Industry practice, Eric advises clients on FDA and state regulatory compliance and enforcement issues, contractual and transactional matters, and intellectual property issues.
Eric is fully bilingual in written and spoken Spanish.
An illustrative sampling of Eric’s experience includes:
Administrative Procedure Act Issues
- Representing a major municipality that operates a large-hub airport in litigation relating to the airport’s noise compatibility program before the D.C. Circuit and administrative proceedings before the FAA.
- Advising a client with respect to challenging actions taken by OSHA to add the client to its Severe Violator Enforcement Program list.
- Successfully challenging in federal district court as arbitrary and capricious an FDA decision to regulate electronic cigarettes as unapproved new drugs and/or medical devices under Chapter V of the Food, Drug & Cosmetic Act.
Electronic Cigarette Industry
- Securing, on federal preemption grounds, dismissal of claims alleging that the marketing of a client’s vapor products violated the D.C. Consumer Protection Procedures Act because the products were not the subject of an FDA marketing order issued as a result of a premarket tobacco application (PMTA). Yimam v. Mylé Vape, Inc., Case No. 2019 CA 008050 B, 2020 D.C. Super. LEXIS 7 (D.C. Sup. Ct. June 11, 2020).
- Obtaining a preliminary injunction prohibiting the FDA from treating an e-cigarette distributor’s products as an unauthorized drug or medical device. This decision, Smoking Everywhere, Inc. v. U.S. Food & Drug Administration, 680 F. Supp. 2d 62 (D.D.C. 2010), opened the doors to the creation of the electronic cigarette industry in the United States.
- Mounting a successful dormant Commerce Clause challenge on behalf of e-liquid manufacturer to Indiana’s legislation governing the manufacture of e-liquids. GoodCat, LLC v. Cook, 202 F. Supp. 3d 896 (S.D. Ind. 2016), aff’d, 678 Fed. App;x 418 (7th Cir. 2017).
- Obtaining a temporary restraining order and preliminary injunction against New York’s emergency flavor ban on the ground that the ban violated the New York constitution’s separation of powers. In re Vapor Technology Ass’n v. Cuomo, 118 N.Y.S.3d 397 (Albany S. Ct. 2019).
- Serving as regulatory and litigation counsel to a major industry trade association.
- Counseling foreign and domestic ENDS device and e-liquid manufacturers, wholesalers, distributors, and retailers on regulatory compliance issues.
- Representing importers and distributors in Section 337 patent infringement investigations before the International Trade Commission brought by a major ENDS device manufacturer.
- Counseling manufacturers on the preparation of premarket tobacco applications (PMTAs) and on marketing and distribution issues, including marketing plans, post-market surveillance plans, and distribution agreements.
- Representing clients in California Proposition 65 litigation and public nuisance litigation.
- Counseling and representing clients in product liability litigation, contractual disputes, and trademark litigation.
Financial Services Industry
- Representing and advising the independent trustees of a closed-end investment fund with respect to the alleged theft of millions of dollars of fund assets by the fund’s former president and investment manager.
- Representing a foreign group captive insurance company in a series of federal and state court cases seeking to collect on multimillion-dollar promissory notes and defend against a series of contractual and business tort claims, including fraud, breach of fiduciary duty, securities violations and allegations of the unlawful transaction of insurance in various states.
- Conducting an independent investigation of claims of alleged breaches of fiduciary duty by the directors of a major national bank.
- Winning a jury verdict in federal court against several offshore companies associated with a Venezuelan national for breach of an investment banking agreement relating to the funding of a resort hotel in Aruba. Bazarian Int’l Fin. Assocs., LLC v. Desarrollos Hotelco, C.A., 342 F. Supp. 3d 1 (D.D.C. 2018).
Trademark and Copyright Litigation
- Representing a professional photographer in a lawsuit against a film company and the federal government resulting from the unauthorized use of photographs in a nationally televised film in violation of the photographer’s copyright and license agreement.
- Representing an electronic cigarette distributor against trademark infringement and unfair competition claims brought by a major tobacco company in federal court.
- Advising electronic cigarette companies regarding potential trademark litigation against infringers of their marks.
- Obtaining a jury verdict in the amount of a full year’s salary for a breach of fiduciary duty claim against the former vice president of business development for a government contractor who established a competing company while still employed.
- Defending two former equity partners of a major law firm in an arbitration against claims for breach of a partnership agreement and breach of fiduciary duty as a result of their withdrawal from the firm.
- Representing a publicly held staffing company in litigation against a former district manager who set up a competing staffing company; obtained a favorable settlement and ultimate determination of non-dischargeability of the debt from the bankruptcy court when the former employee failed to pay the settlement amount. Also represented another national staffing company as successor in interest to the publicly held staffing company in follow-on litigation against the same individual; obtained a favorable verdict in a bench trial in state court against the individual, including an award of punitive damages and a finding of contempt for breaches of a temporary restraining order and preliminary injunction.
- Representing a United States Secret Service agent against allegations of misconduct and disciplinary action before the Merit Systems Protection Board.
- Representing a federal government attorney against allegations of misconduct and ethical violations before the Merit Systems Protection Board.
- “E-cigarette enforcement at a post-Gottlieb FDA,” SmartBrief, May 2019
- “Forum Selection Clauses in Agreements with Foreign Counterparties: Not Just Another Boilerplate Provision,” Thompson Hine Business Law Update, Spring 2016
- “The Minefield of E-Cigarette Labeling And Promotion,” Law360, October 2, 2015
- “Planning For The FDA’s 'Deeming Rule' For E- Cigarettes,” Law360, September 21, 2015
- Co-Author, “E-Cigarettes: Product Liability & Lithium Ion Batteries,” Thompson Hine Product Liability eNewsletter, Winter 2015
- “Latin American State Secrecy and Mexico’s Transparency Law,” 38 Geo. Wash. Int’l L. Rev. 437 (2006)
- Selected as a DC Rising Star by The National Law Journal, 2020
- Selected as a Rising Star by Washington, D.C. Super Lawyers magazine, 2014-2020
- Listed as a Litigation Future Star by Benchmark Litigation, 2021
- Benchmark Litigation Under 40 Litigation Hot List, 2017-2020
- Virginia State Bar
- Member, Board of Education for Our Savior Lutheran Church and School in Arlington, Virginia
April 17, 2020