D.C.’s public transportation system, locally called Metro, contracted with Akin Gump Strauss Hauer & Feld and Munger, Tolles & Olson to defend against a lawsuit challenging advertisement policy. Credit: Jay Mallin

The District of Columbia’s public transportation system anticipates spending more than $1 million on outside lawyers to defend its refusal last year to allow the Archdiocese of Washington to purchase and run a Christmas advertisement on buses, according to records obtained by The National Law Journal.

The Washington Metropolitan Area Transit Authority, or WMATA, issued purchase orders authorizing nearly $800,000 in legal fees for the law firm Akin Gump Strauss Hauer & Feld and nearly $300,000 for Munger, Tolles & Olson.

The amounts identified in the purchase orders reflect an estimate of the total cost of the defense work, not payments that have already been made to the two firms, said Sonia Bacchus, WMATA’s chief counsel for customer service and regulatory affairs. “It is the calculation of what we think it will cost,” she said.

The Akin Gump purchase order is dated Dec. 15, and two Munger Tolles agreements were authorized in December and January.

None of the records publicly reveal the hourly rates the firms proposed to WMATA. The agency’s in-house legal team said it redacted rates, cost estimates and other business information “that would put both WMATA and our contractors at a competitive disadvantage if released because it would likely impact WMATA’s ability to get the best price and would also impact our contractors’ ability to negotiate rates.”

Donald Verrilli Jr.

The archdiocese case, which is pending in the U.S. Court of Appeals for the District of Columbia Circuit, pits veterans of the Supreme Court against each other. In that court, Munger Tolles partner Donald Verrilli Jr., a former President Barack Obama-era U.S. solicitor general, faced off in March against Kirkland & Ellis partner Paul Clement, a solicitor general during the George W. Bush administration.

In the trial court, Akin Gump’s Rex Heinke, arguing for WMATA, successfully convinced U.S. District Judge Amy Berman Jackson to deny the archdiocese’s request for a preliminary order that would have required WMATA to run the advertisements on bus exteriors. The archdiocese appealed Jackson’s Dec. 8 ruling to the U.S. Court of Appeals for the D.C. Circuit.

In a letter to WMATA, Anthony Pierce, the Akin Gump partner in charge of the firm’s Washington office, pitched Heinke as a “seasoned litigator” who was “intimately familiar with WMATA and [its] advertising concerns” based on two previous engagements with WMATA. His letter to WMATA appeared to specify hourly rates, but they were redacted in the copy provided to the National Law Journal. Heinke is a Los Angeles-based co-leader of the firm’s Supreme Court and appellate practice.

In earlier unrelated cases, Heinke defended WMATA against a lawsuit brought by the American Freedom Defense Initiative, which sued over the agency’s refusal to run an advertisement on buses and subway station dioramas featuring the prophet Muhammad. A federal district judge in Washington granted summary judgment to WMATA in March 2017. The American Freedom Defense Initiative, represented by attorneys from the Freedom Law Center, appealed to the D.C. Circuit, where the case is pending.

Pierce’s proposal also cited a case that challenged Metro’s refusal to allow Carafem, a women’s health care collective, to advertise abortion services. The case, brought last year by the American Civil Liberties Union, also challenged the removal of advertisements promoting a book by the conservative provocateur Milo Yiannopoulos. A federal judge in March denied Yiannopoulos’ bid for a preliminary injunction that would have forced WMATA to repost the ads.

 

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