Amy Jeffress (File: 2013) Credit: Diego M. Radzinschi / NLJ

Last month, Wilmer Cutler Pickering Hale and Dorr partner Reg Brown was watching as a freshman lawmaker from California rose overnight to national prominence.

In a round of questioning that would go viral, Democratic U.S. Rep. Katie Porter asked Equifax CEO Mark Begor to reveal his Social Security number and date of birth. When he declined, saying he'd be a “bit uncomfortable” providing that personal information, Porter brought the hammer down. Why then, she asked, were Equifax's lawyers arguing that the company's 2017 data breach caused no harm to consumers.

In that moment, Brown, who had prepared another executive for the hearing, saw the beginnings of a questioning style that put Porter firmly on the radar of the congressional investigations bar and any executive coming before the House Financial Services Committee.

“The idea that your own litigation filings might be harmful to you in the course of congressional hearings is something of a new twist,” Brown said Tuesday, appearing on an American Bar Association panel about defending clients in congressional investigations. “But we are where we are.”

Porter took a similar approach in her questioning of Wells Fargo CEO Tim Sloan earlier this month, opening her round with questions about whether the executive meant it when he said in the wake of the fraudulent account scandal that the bank was committed to restoring customers' trust. If that were the case, she asked, why were Wells Fargo's lawyers dismissing his statements in a securities class action as “paradigmatic examples of nonactionable corporate puffery, on which no reasonable investor could rely.” Sloan didn't have an answer.

Katie Porter Rep. Katie Porter, D-California. Credit: Diego M. Radzinschi / NLJ

Porter's success landing blows at congressional hearings has made her the U.S. House equivalent of her former law school professor, U.S. Sen. Elizabeth Warren, D-Massachusetts, who has shown a similar approach in grilling financial industry executives.

Porter has set herself apart with a signature approach: using a company's own court filings against its top executive. At Tuesday's ABA panel, it was clear Porter has been on the minds of lawyers who are in the business of prepping executives for their time appearing in the klieg lights of a congressional hearing.

Arnold & Porter partner Amy Jeffress, speaking on Tuesday's panel, said white-collar defense lawyers have long been accustomed to considering how public testimony might affect a court proceeding. Porter's questioning style, rooted in her background as a law professor, has demonstrated a need to dig deeper during hearing prep, Jeffress said.

“This converse, of having what you say in litigation now brought into your congressional investigation context—that's new. That's a fresh perspective,” Jeffress said. “I think it's really interesting. Good for her for being so prepared and for thinking through it.

“It means that we all have to think ahead in that same way and think about what has a company been saying in litigation. It just means more preparation time, just more homework,” she added. “So good for lawyers—more business.”

MoloLamken partner Justin Shur moderated Tuesday's panel, which also included Akin Gump Strauss Hauer & Feld partners Karen Christian and Raphael Prober.

 

More highlights from the discussion:

>> “I see your five minutes is up.” At a February hearing with the House Judiciary Committee, then-acting Attorney General Matthew Whitaker drew gasps when he tried to enforce the five-minute limit on questioning rounds. “Mr. Chairman, I see your five minutes is up,” he told the committee's leader, U.S. Rep. Jerrold Nadler. “I'm here voluntarily. I agreed to five-minute rounds.”

The moment immediately became a highlight—or, more specifically, a blooper—in congressional hearings lore.

“I keep a newsreel of real doozies. And I show them to my clients and say to them, 'Don't be him, don't be her.' And there have been some great additions lately,” Brown said, giving Whitaker's “five minutes are up” remark as an example.

Generally, Brown said, “witnesses are more prepared now than in the past, and that's partly due to the more professionalized bar in this space.” The Senate Finance Committee's recent hearing on drug pricing, he said, featured several pharmaceutical industry executives who were all “really well-polished, prepared.” Brown said of the CEOs: “Not a single one of them missed a beat.”

>>  Closed-door v. public hearing: Is there a preference? “I think you can do a lot less at a hearing than you can in a closed-door session. … At a hearing, the members generally don't want to see the lawyers jumping up and down helping their clients. And it doesn't look good, especially if it's televised,” Jeffress said.

She added: “Generally, a closed-door session is preferable because there are fewer members there performing for the cameras. You can have a more civilized engagement and often the members don't even come. I think it's a more comfortable situation. It's still a hot seat, but it's much less so than being in the hearing room.”

>> To attend the hearing or not to attend? “I used to go to all the hearings. And now, I kind of feel like if I've done my work well, the general counsel can sit behind the witness,” Wilmer's Brown said. “There really isn't anything to do other than be supportive, because there's not much of an opportunity to weigh in. If there's a problem where there's something inaccurate on the record, the record is usually open for a while. You can address it after the hearing.”

 

Read more:

'I Don't Want My Client to Be Blindsided': Lawyers Brace for Rep. Porter's Questions

'Your Five Minutes Is Up,' Matt Whitaker Tells Leading House Democrat

Compliance Hot Spots: When a Law Professor Goes to Congress

How a 'Never Trump' Covington Partner Won, Then Lost, Lucrative ZTE Monitorship

Many Women Lawyers Were Elected in the Midterms? Here's Who They Are