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By Ben Penn
When the White House nominated Kate O’Scannlain as the Labor Department’s chief legal officer, a contingent of high-profile labor and employment attorneys shared the same reaction: Who?
The Trump administration’s pick for solicitor of labor would be charged with overseeing one of the largest government legal shops and have independent authority to file lawsuits enforcing some 180 federal workplace statutes. Yet, despite her prominent legal pedigree and dozens of massive corporate clients, O’Scannlain has practiced law for more than a decade in relative obscurity.
Those familiar with O’Scannlain’s work credit her objectivity and problem-solving skills in overseeing high stakes corporate transactions. Still, O’Scannlain’s 12 years at powerhouse firm Kirkland & Ellis haven’t put her on the radar of some former DOL attorneys from the past few administrations and other nationally recognized workplace law experts who were contacted by Bloomberg Law. That’s partially because her recent focus on mergers and acquisitions takes place behind the scenes, without the name recognition that attorneys amass from constant litigation.
Previous Republican-appointed solicitors have commonly hailed from the management bar or government service. More often than not, they’re in the earlier stage of their legal careers, meaning O’Scannlain brings more tenure as a law practitioner than many of her precursors.
Eugene Scalia, who worked as labor solicitor under President George W. Bush, said O’Scannlain’s concentration in M&A is well-suited for the vast requirements of the job with which she’s been entrusted.
“You’re assessing a company’s compliance, and telling the acquiring company what potential concerns you see,” Scalia, who was DOL solicitor from 2002-2004, told Bloomberg Law. “That requires a thoughtful, informed, objective assessment of the work environment. I think that non-adversarial and informed and probing approach toward the workplace in some sense resembles the mission of the Labor Department very well.”
O’Scannlain will undoubtedly be quizzed about her views on labor law and policy when she eventually testifies in the Senate.
The Senate labor committee “is going to have to work even harder to get her to disclose her understanding of the law, her philosophy with respect to enforcement and compliance assistance, and the regulatory strategies she’s going to bring to the department,” Seth Harris, the deputy and acting labor secretary under President Barack Obama, told Bloomberg Law. “They should press her closely about the specifics of her job as the nation’s top employment law prosecutor,” he said.
The panel has yet to schedule a hearing for O’Scannlain, who was first nominated in late September. But ahead of an eventual hearing, interviews with attorneys who know O’Scannlain well reveal her as a pleasant, balanced lawyer with a penchant for fair, expedient resolution.
Scalia, who said he’s known O’Scannlain through a family connection for years, shares another bond with the nominee—they’re both the offspring of renowned conservative judges. Scalia’s father was the Supreme Court Justice Antonin Scalia. The elder O’Scannlain (Diarmuid) is a senior judge on the U.S. Court of Appeals for the Ninth Circuit, who for decades has served as the liberal-leaning jurisdiction’s reliably conservative, limited-government voice.
Through a Kirkland & Ellis spokeswoman, Kate O’Scannlain declined Bloomberg Law’s request for an interview.
Over the past few years, O’Scannlain’s practice pivoted to focus on the labor and employment aspects of M&A, particularly in the private equity landscape. She’s participated in more than 200 corporate transactions and sales in the past two years alone, according to Kirkland & Ellis, which declined to specify the deals.
O’Scannlain’s name appeared more often in court dockets before that. For instance, she regularly defended Nationwide Insurance in claims brought by insurance agents or homeowners suing over coverage related to Hurricane Sandy damages. It was during that time that O’Scannlain cemented a reputation as a gregarious, open-minded attorney who even got compliments from opposing counsel, Brant Bishop, her former colleague, recalled.
Bishop, now a managing partner at Wilkinson Walsh & Eskovitz in Washington, said that during Nationwide cases and in other litigation, O’Scannlain helped to diffuse conflict with the plaintiffs’ attorneys, avoiding the acrimony that typically plagues the information-gathering phase.
Would her collegial style translate into a solicitor’s office that works more harmoniously with employers? “I think there’s definitely the possibility of that,” Bishop, who worked alongside O’Scannlain for about a decade at Kirkland & Ellis, told Bloomberg Law. “She’s not somebody that became a lawyer because by her nature she’s contentious and likes to fight for the sake of fighting.”
O’Scannlain’s new client would be Labor Secretary Alexander Acosta and the department as a whole. If confirmed as solicitor, she would assume the DOL’s No. 3 overall position at a weighty moment, with numerous regulations and controversial litigation stances from the prior administration ripe for review. The solicitor’s approval is required for essentially any important document to clear the department, be it a lawsuit accusing an employer of skirting overtime obligations, delay of a regulation’s enforcement, or an interpretive guidance.
O’Scannlain’s labor and employment practice at Kirkland & Ellis’ Washington office entails advising companies on the workplace issues that arise in large mergers and acquisitions. This includes a regular review of a company’s liability related to wage and hour obligations and nondiscrimination requirements for federal contractors. It also involves compliance with immigration, pension, and labor laws, among other areas.
Behemoth investment firms the Blackstone Group, Kohlberg Kravis Roberts, and Bain Capital were among the more than 80 clients she disclosed to the Office of Government Ethics. O’Scannlain vowed that if confirmed by the Senate, she wouldn’t participate in government matters in which any of her former clients is a party. The recusal pledge would expire one year after her last contact with a client.
Although the DOL has jurisdiction to investigate these companies, Scalia called this timeout a “standard practice” for attorneys entering the solicitor position. “I’ve never seen it be an operational hurdle,” said Scalia, who is now a partner at Gibson Dunn, which represents businesses.
John Irving, of counsel at Kirkland and a former DOL solicitor’s office attorney, extolled his colleague’s record in the practice of large corporate mergers and acquisitions.
“I see Kate professionally as being noncontroversial. She has no enemies or detractors. The kind of work that she does is problem solving,” Irving told Bloomberg Law. “What do we see from the standpoint of buyers or sellers that may be a problem? What’s the cause? Sometimes it’s management, sometimes it’s employees, sometimes it’s customers. She looks into all of this, and that’s our framework, rather than litigating cases against sellers, buyers, or unions.”
That lack of controversy could have helped sell Acosta and the White House on O’Scannlain’s qualifications. Fast-food mogul Andy Puzder, President Donald Trump’s first pick for labor secretary, withdrew from consideration amid dwindling Republican support and personal controversy.
But aside from Puzder, the GOP-controlled Senate has been eager to approve President Donald Trump’s labor nominees. O’Scannlain’s solicitor role would enable her to directly satisfy the Republicans’ desire for new DOL officials to undo an Obama agenda they deemed too aggressive toward employers. The only impediment to her confirmation may be finding time in a packed congressional calendar to hold a hearing and votes.
That’s not to suggest that Senate Democrats will give her a free pass. Democratic lawmakers have attempted to scrutinize the records of recent DOL and National Labor Relations Board nominees over their histories representing management, not workers.
The solicitor’s office has been run in an acting capacity by political appointee Nicholas Geale since February. In the Obama administration, DOL chief attorney Patricia Smith was known as a fierce champion for workers’ rights, which included seeking maximum penalties against law-breaking employers when the solicitor’s office felt it had the authority.
Asked about her would-be replacement’s resume, Smith said O’Scannlain at least surpasses her GOP-appointed predecessors.
“The truth of the matter is, if you look back at some of the other Republican nominees for solicitor, she’s got more legal experience than they did,” Smith, now a senior counsel at the National Employment Law Project, told Bloomberg Law. “It’s not vast or overwhelming or necessarily relevant, but she’s not five years out of law school. They kind of have a low bar there.”
Republican solicitors, on average, are less advanced in their careers—frequently fewer than 10 years out of law school—when they take the job than their Democratic counterparts, according to a recent Bloomberg BNA review of solicitors dating back to the Nixon administration. O’Scannlain earned a J.D. from Notre Dame Law School in 2005, and has been practicing at Kirkland ever since.
Scalia said O’Scannlain’s advice to employers outside of the courtroom shouldn’t be overlooked, even if it hasn’t placed her in the labor and employment bar spotlight.
“She has not had a heavily litigation-focused practice in the labor and employment area,” he said. “But the advice and counsel that a management-side lawyer gives is typically an important part of the job, and is part of the way that lawyers, even when they’re representing companies, often are furthering the purposes of the statutes that DOL administers.”
To contact the reporter on this story: Ben Penn in Washington at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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