For top legal jobs including White House counsel, U.S. solicitor general and general counsel at the U.S. Department of Agriculture, President Donald Trump has repeatedly turned to a single law firm: Jones Day.
Trump returned to that well Wednesday when he nominated Jones Day partner Dana Baiocco to fill a soon-to-be vacant seat on the Consumer Product Safety Commission. If confirmed by the Senate, Baiocco would replace Marietta Robinson, whose term expires in October, flipping the commission from Democratic to Republican rule.
Robinson could hold onto her seat past October if Baiocco is not confirmed by then, but the Trump administration appears interested in limiting that holdover time. In announcing her nomination, the White House said Baiocco would serve a seven-year term beginning Oct. 27 if confirmed.
Rather than step down after Trump’s surprise election, then-chairman Elliot Kaye decided to remain on the commission—albeit in the diminished role of one of the four other commissioners. Kaye’s decision created a rare power dynamic, keeping in place a Democratic majority that left the acting Republican chairwoman, Ann Marie Buerkle, on the losing side of 3-2 votes to approve high fines and push forward with regulations. Trump nominated Buerkle in July to serve as chairwoman in a permanent capacity.
“The nomination is surely a welcome one for acting chairman Ann Marie Buerkle, who is currently operating with a Democratic majority and, until today, uncertainty surrounding when that would change,” wrote three lawyers at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, on the firm’s “Consumer Product Matters” blog. “The nomination signals the White House’s intent to achieve a Republican majority at the CPSC and curtail the agency’s steady push of Democratic initiatives along 3-2 party line votes.”
Baiocco joined Jones Day in 1998 after clerking for U.S. District Judge Gustave Diamond of the Western District of Pennsylvania, and became a partner in the Pittsburgh office in 2007. In 2011, Baiocco was one of the founding partners of the firm’s office in Boston, where she is the “go-to counsel” for the Red Sox and advises clients on CPSC product recalls, according to her biography on Jones Day’s website. In 2015, she defended the Red Sox against a fan who sued the professional baseball team after being hit by a foul ball during a game.
Earlier that same year, she helped Honeywell International defeat a wrongful death lawsuit claiming the company’s subsidiaries produced defective respirators that did not adequately warn or protect consumers from asbestos-related diseases. She also served on the team defending Electrolux’s proposed acquisition of General Electric’s appliance business, a deal GE abandoned in the midst of an antitrust fight with the U.S. Justice Department.
Baiocco was not immediately available for comment Thursday.
At the CPSC, Baiocco could give a deciding third vote to Buerkle, who has consistently voted against penalties over late reporting of product defects, and generally advocates for more cooperation with companies rather than imposing mandatory product safeguards.
Under the leadership of Kaye, the CPSC seized on Congress’ decision to lift the cap on the agency’s penalties from $1.8 million to $15 million. While cautioning he did not want the commission to go on a “joy ride,” Kaye said last year that he wanted civil penalties to reach the “double million-dollar digits.”
Buerkle would go on to criticize Kaye for that approach, saying the CPSC “obliged” his request with a record-setting $15.45 million settlement with Gree Electric Appliances over defective humidifiers that overheated and caught fire. She was the only commissioner to vote against that settlement.
Last month, she was again the lone dissenting vote when the CPSC approved a $5.7 million settlement with Home Depot over claims the retailer, in a span of four years, sold thousands of products that had previously been recalled due to dangerous defects. Buerkle believed a $1 million penalty would have been more appropriate.
In a statement last year, Buerkle noted she had voted in favor of only three of the dozen civil penalties assessed in the previous two years. “One might think that I oppose civil penalties as a matter of course but actually my opposition has been for a variety of reasons,” she said, citing a lack of transparency and consistency in how CPSC staff arrive at penalty amounts.
Buerkle declined to comment on Baiocco’s nomination.