It’s not that lawyers from Cooper & Kirk dislike the government. But as name partner Charles Cooper Jr., who ran the Justice Department’s Office of Legal Counsel from 1985 to 1988, said, "You can’t imagine how gratifying it can be to sue your former client."
Since its launch in 1996, when a group of litigators ditched what was then Shaw, Pittman, Potts & Trowbridge to start their own firm, Washington’s Cooper & Kirk has made suing state and federal government agencies a cornerstone of its business. Suits against the government account for about 30% of its work.
Mere months before the firm opened its doors, Cooper won U.S. v. Winstar, in which the U.S. Supreme Court held the federal government liable for breaking contracts with financial institutions that took over troubled thrifts during the savings and loan crisis of the 1980s. The case, which Cooper also argued at the U.S. Court of Appeals for the Federal Circuit, opened the door for judgments of more than $2 billion against the federal government. To date, lawyers from Cooper & Kirk have won more than $100 million for 15 clients in Winstar-related cases.
Cooper called those cases "perhaps the most prominent lawsuits against a government agency, but they were just a part of our work in cases against the government."
The firm represents a putative class of thousands of Louisiana residents against the Army Corps of Engineers. The case alleges that inadequate maintenance and operation of the Mississippi River-Gulf Outlet, known as MRGO, has led to repeated flooding of businesses and homes in St. Bernard Parish and New Orleans’ Lower Ninth Ward.
In October 2009, the U.S. Court of Federal Claims ruled in favor of Cooper & Kirk’s clients in Shell Oil Co. v. U.S., a breach of contract dispute involving World War II aviation fuel supply agreements. The case seeks to recover the costs of cleaning up waste generated in the production of the aviation fuel. The judgment in the trial court was $87.3 million, which will be divided among four oil companies if upheld on appeal.
With just 11 lawyers, five of whom are partners, Cooper & Kirk is a small operation that handles matters national in scope. The firm originally went by the name Cooper, Carvin & Rosenthal. After Michael Carvin and Steven Rosenthal left in 2001 to join Jones Day and Kaye Scholer, respectively, Michael Kirk was elevated to name partner.
SMALL BUT HIGH-STAKES
Kirk said that maintaining its boutique size has been part of the firm’s strategy from the beginning. Staying small allows the firm to be more flexible in its billing arrangements. About 40% of the firm’s business is billed by way of alternative arrangements such as flat fees, blended rates and contingent fees, Cooper said.
The firm, which counts among its clients The Boeing Co., Bank of America Corp. and Ford Motor Co., also handles what Thompson called "high-stakes" commercial and constitutional litigation. "I’m pretty sure we’ve tried cases on just about every clause of the U.S. Constitution," Thompson said. "Maybe not the Third Amendment, but if you know of any soldiers being quartered anywhere, let us know."
Lately, Cooper and firm managing partner David Thompson have been focusing on the closely watched challenge to California’s Proposition 8, which bars marriage between same-sex couples. Cooper received a call from Andrew Pugno, general counsel of ProtectMarriage.com, asking him to get involved. He quickly agreed and now represents citizens’ groups supporting Proposition 8 against the odd-couple team of conservative Theodore Olson and liberal David Boies. The case, which is expected to wind up before the U.S. Supreme Court, has already drawn an opinion from the high court blocking U.S. District Judge Vaughn Walker’s decision to permit daily trial broadcasts on YouTube. That was a win for Cooper and Thompson.
"In any other case, that would have been the momentous event of the case," Cooper said. "In this case, it was merely a side issue." Closing arguments are set for June 16.
Although Cooper is on the opposite side from Olson in the Proposition 8 case, the two men have more often pulled together. They teamed up in Bush v. Gore and they had different clients but the same goal in Citizens United v. Federal Election Commission. In the latter case, Olson argued before the high court and Cooper wrote an amicus brief on behalf of the National Rifle Association.
Olson, a partner in Gibson, Dunn & Crutcher’s Washington office, said of his erstwhile ally, "No other firm comes to mind that is their size but is also engaged in cases at the highest level of the national scene like they are. They deserve a lot of credit."
Jeff Jeffrey can be contacted at email@example.com.