Pro Bono Innovators 2022 Honoree Wilmer Cutler Pickering Hale and Dorr

Your firm’s key matters included representing Period Equity to end the “tampon tax” in Michigan and representing the United Farm Workers union to help farm workers avoid over $546 million in wage losses stemming from a rule change by filing a successful lawsuit against the US Department of Agriculture. How did your firm strategize on how to approach these matters?

We have worked with Period Equity (now Period Law) since 2019. We attended the Tampon Tax LAB (Legal Action Brainstorm) in Fall 2019 where we participated in a discussion with scholars, advocates, and other litigators. From the outset, the importance of taking a collaborative approach to ending the tampon tax was evident. Working with stakeholders in different fields and disciplines was critical to our strategy.

In the United Farm Workers matter, the litigation team drew on the firm’s substantial litigation and Administrative Procedure Act experience to stake out a course that would give UFW the best chances for success. The team recognized early on that it needed to act quickly to vacate the agency action before it could take effect. The firm thus began preparing for the agency action before it was even final, and was able to move quickly to avoid that harm to farm workers.

What were the most innovative aspects of these matters in your view? And who took the lead on driving innovation with the work?

Our work to end the tampon tax is driven by our motivation to overturn the status quo, erase unhealthy taboos, and develop a more inclusive and equitable society. We approached our work with a view toward collaboration and inclusivity. Given the number and variety of states that still levy sales taxes on menstrual products, an approach that utilizes expertise across practice areas and draws on ideas from all team members—including partner, counsel, associates and summer associates—has been fundamental to our team.

In the farm workers matter, the Trump administration had taken several discrete actions to effectuate its policy change—eliminating a survey and changing wage calculations. Those dual agency actions meant that UFW had to separately challenge those different actions by different agencies to reach the desired outcome. The litigation team, working together, was successful in having the wage regulation vacated in part because it had first succeeded in having the survey on which the wage regulation relied reinstated.

Tell us more about the impact of the matters on the local, national, and/or global level.

Much of the impact is tangible—since Period Equity began its campaign to abolish state sales and use taxes on menstrual products in 2016, 14 states have eliminated this tax. WilmerHale began providing national strategic advice and litigation counsel to Period Equity in 2019. But there is also an important intangible impact—advocacy networks have developed as a result of the momentum created by our work in Michigan and other states.

In the farm workers matter, the decision vacating the Trump administration’s wage rule had nationwide effect. The ruling made sure that over 300,000 farm workers spread out among almost every state got to keep over $546 million in wages.

Why do you think your team ultimately achieved successful results?

We are an effective team with experience advising, strategizing, and managing the most complex matters for our clients. Our success has been due in large part to our genuinely collaborative approach internally, with Period Law, with our individual clients, and with our co-counsel, Schiff Hardin [now ArentFox Schiff.] A variety of viewpoints strengthened our work product and furthered our ultimate goal of ending the tampon tax.

The team’s strategic thinking and strong advocacy at various stages of the proceeding helped achieve the success for United Farm Workers. In particular, the team put together strong merits briefs and presented compelling arguments during multiple hearings before the district court judge.

Take us back to the time the matter was resolved. What did you do to celebrate?

There are still 22 states that levy sales tax on menstrual products, so our work is not over yet. But we’ve celebrated successes along the way by spending time with our collective five children, several cats, a golden doodle, and a border collie (who also provided input along the way in the background of our video calls).

Due to Covid, the team unfortunately was not able to celebrate in person together. But everyone on the team was able to enjoy the substantial victory and relish in the benefit won for farm workers across the country. For example, one of the orders in UFW’s favor was issued the day before Thanksgiving, which gave the day special meaning and allowed the team to reflect on the hard work of the hundreds of thousands of farm workers that made Thanksgiving meals possible.

Responses provided by WilmerHale partners Mark Selwyn and Gregory Lantier, counsel Derek Woodman and Taylor Gooch, and associate Phillip Takhar on the United Farm Workers matter. Partner Brian Mahanna, counsel Joanna Howard and Megan Barriger, and senior associates Kelsey Russell, Cassie Mitchell, and Emma Bennett wrote responses for the Michigan reproductive law matter.

—With assistance from Kibkabe Araya.