Two years after the firm lost appellate star Paul Clement by backtracking on a politically controversial case involving gay marriage, King & Spalding’s long-standing ties to the U.S. soft drink industry have helped it get behind the NAACP as the organization joins those opposing New York City Mayor Michael Bloomberg’s ban on plus-sized sugary beverages in an effort to combat obesity and encourage healthy living.
King & Spalding is representing the NAACP and The Hispanic Federation in the suit filed last October in New York State Supreme Court by plaintiffs challenging mayoral-mandated limits that go into effect on March 12 prohibiting the sale of soft drinks larger than 16 ounces.
The plaintiffs, identified in court records as the New York Statewide Coalition of Hispanic Chambers of Commerce, are backed by powerful business groups and trade associations supported by major soft drink manufacturers, many of whom came out last May to blast Bloomberg’s proposal seeking to restrict citizens from slaking their thirst with plentiful portions of sugary liquids.
At a hearing in the case this week, lawyers for those industry groups—represented by Latham & Watkins litigation partner James Brandt, head of the firm’s New York office—asked state court Justice Milton Tingling Jr. to overturn Bloomberg’s controversial ban, which applies to city-sanctioned purveyors of prepared foods such as delis, movie theaters, restaurants, and stadiums, but exempts convenience stores and supermarkets.
King & Spalding entered the case in early December when it filed an amicus brief on behalf of the NAACP and The Hispanic Federation claiming that the proposed law unfairly affects minority-owned small businesses and denies individuals in low-income communities the freedom to drink whatever they desire.
The NAACP’s general counsel is Kim Keenan, who became the youngest attorney and the second woman to hold the position in the organization’s history when she was hired in February 2011, according to sibling publication Corporate Counsel. Keenan did not immediately respond to a request for comment about the NAACP’s decision to hire King & Spalding for the case, nor did Jones Day M&A of counsel Nicholas Rodriguez, a member of The Hispanic Federation’s board of directors.
Litigation partner Ann Cook in New York and Jeffrey Cashdan in Atlanta are leading a King & Spalding team working on the matter. A spokesman for the firm told The Am Law Daily that King & Spalding is pleased to be representing the NAACP and The Hispanic Federation in a case that “raises important issues for these organizations.”
The claim by the NAACP and The Hispanic Federation that Bloomberg’s big drink ban is discriminatory—the mayor has touted the measure as an effort to improve the health of minorities—has focused attention on the donors to those organizations.
The Coca-Cola Company gave $130,000 in 2011 to causes supported by the NAACP, according to tax filings by The Coca-Cola Foundation, a nonprofit run by the Atlanta-based soda giant. (Katten Muchin Rosenman of counsel Richard Daley, who joined the firm in 2011 after six terms as the mayor of Chicago, is an independent board member at Coca-Cola.)
Coca-Cola is also listed as a funder of The Hispanic Foundation, but in fairness to the group, Bloomberg LP, of which New York’s mayor is a majority owner, is also a donor.
Coca-Cola is also a member of the American Beverage Association, a Washington, D.C.–based trade group for the nonalcoholic segment of the beverage industry that includes soft drink makers and their distributors, and last year Latham partners Brandt, Richard Bress, and William Rawson were on hand when the ABA filed suit against the New York City Department of Health and Mental Hygiene over its approval of Bloomberg’s big drink ban. Patricia Vaughan serves as general counsel and senior vice president of legal and regulatory affairs for the ABA, which in 2011 hired former McDermott Will & Emery partner Amy Hancock as its deputy general counsel. (Alston & Bird has handled lobbying work for the ABA, according to U.S. Senate records.)
“The decision by the [New York City] board of health to restrict the sale of sugar-sweetened beverages in packages or cups larger than 16 [ounces] is neither prudent nor helpful in the overall fight against obesity,” said a joint statement released by the ABA from Hazel Dukes, president of the NAACP’s New York chapter. “The ban will be ineffective in that it does not get to the root of the problem of obesity in New York or in the African American community.”
While King & Spalding has a robust lobbying group—the firm added former Texas congressman Michael Andrews to its practice in December and picked up British American Tobacco as a client the month before—it has not been active on behalf of soft drink companies. (Public records show that Bacardi, the world’s largest privately held spirits company, paid $70,000 to King & Spalding in 2012.)
Nonetheless, King & Spalding is no stranger to the U.S. soft drink industry.
Larry Thompson, a former King & Spalding partner who went on to serve as deputy attorney general at the U.S. Department of Justice a decade ago, returned to the general counsel role last year at Purchase, New York–based Pepsico, the world’s second-largest soft drink maker after Coca-Cola. (Pepsico was also the recipient of an image award by The Hispanic Federation.)
Coca-Cola has been a longtime King & Spalding client, and presented the firm with a diversity award in 2009. The firm has also represented Coca-Cola in litigation over Coke Zero, and handled a $137.5 million securities class action settlement for the company in 2008.
Coca-Cola also reportedly played a key role in getting King & Spalding to back out of its representation two years ago of the Republican-controlled U.S. House of Representatives in defending a section of the Defense of Marriage Act which, for federal purposes, defines marriage as a union between a man and a woman. The decision by King & Spalding to quit the case resulted in its lead lawyer in the matter, former U.S. solicitor general Paul Clement, abruptly leaving the firm he had joined in 2008 to link up with Washington, D.C.–based Bancroft, a firm known for its conservative credentials.
Given King & Spalding’s strong connections to the beverage industry, it’s unlikely the firm will face similar pressure to drop the cup on the NAACP and The Hispanic Federation in their fight against thirst-quenching tyranny.
Representing the city in the litigation is Michael Cardozo, a former chair of the sports law practice at Proskauer Rose who has served as Corporation Counsel for the City of New York since 2002, making him the longest-serving attorney in that position. Other attorneys from Cardozo’s office representing the city are Robin Binder, Spencer Fisher, Jasmine Georges, Trevor Lippman, and Mark Muschenheim.
While the soda industry seeks to scuttle Bloomberg’s prohibition on barrel-sized sugary beverages, it will continue to have to deal with similar initiatives that have sprung up elsewhere. This week Massachusetts Governor Deval Patrick proposed a $34.8 billion state budget that includes new and increased sales taxes on soda, candy, and cigarettes. Patrick, who is married to a Ropes & Gray partner, was once general counsel for Coca-Cola.