TikTok Taps Covington, Mayer Brown in Fight for US Survival (2)

TikTok is turning to Covington & Burling and Mayer Brown to fight a law requiring its Chinese parent to sell its stake in the company in order for the social media app to continue operating in the US.

Covington, a Washington-based firm with lawyers including Obama-era attorney general Eric Holder, has served as TikTok’s legal muscle in actions involving federal and state governments since 2020, when the Trump administration attempted to ban the app nationwide because of national security concerns.

Chicago-founded Mayer Brown has been looking to position itself as a leading advocate for banks and other finance players fighting new regulations in Washington. It also has a big tech practice serving clients such as Meta Platforms Inc. and TikTok on issues such as consumer privacy.

The two international law firms’ roles in the lawsuit puts them at the center of TikTok’s long-running fight to continue operating in the US. President Joe Biden signed a bill into law April 24 that began a 270-day countdown for the required sale or a US prohibition of the popular video-sharing platform.

TikTok and its Chinese parent ByteDance Ltd. filed the Tuesday lawsuit in the US Court of Appeals in the District of Columbia. The company argues the legislation is an unconstitutional ban that targets a “vibrant online forum” used by 170 million Americans.

The newest case is likely to pit legal issues involving the First Amendment against national security interests, said Nazak Nikakhtar, a Wiley Rein partner who once served as a Department of Commerce assistant secretary.

Freedom of speech questions may not matter, however, if the government effectively persuades the court on the national security threat the US says the app poses, Nikakhtar said. “It’s really not about the merits of the case,” she said. “It’s really about how these things are argued.”

The two law firms did not immediately return requests for comment.

Covington partners including global litigation chair John Hall, Alex Berengaut and Megan Crowley, a former Justice Department trial lawyer, have led the firm’s work on behalf of TikTok and all signed the lawsuit filed Tuesday.

In 2021, Berengaut, Hall and Crowley led a Covington team that helped get the Chinese smartphone maker Xiaomi off a US government blacklist that barred American investment in the company. Berengaut and Crowley have represented Microsoft Corp. in other matters touching on issues such as government surveillance.

Covington attorneys David Zionts and Anders Linderot also are working on the new TikTok lawsuit, along with Mayer Brown partners Andrew Pincus and Avi Kupfer.

TikTok Fights

Covington and Mayer Brown’s Washington practices feature a stable of former government attorneys who are often called on to defend blue-chip clients in high-stakes cases.

Pincus, who once worked in the US solicitor general’s office, worked on the lawsuit after arguing on TikTok’s behalf in a case seeking to hold it responsible for the death of a 10-year-old girl who participated in an online challenge in which people choked themselves until they blacked out.

TikTok has argued that it is shielded by Section 230 of the Communications Decency Act, which protects social media sites from being held liable for much of the content published on their platforms. Pincus in January pushed the Third Circuit to affirm a district court ruling in favor of TikTok on those grounds.

Covington also last year helped TikTok block a Montana law that would have banned the app in the state and won a dismissal of an Indiana suit claiming the app deceived users about data security and the content it feeds children.

The firm’s arguments in the Montana case on behalf of TikTok may offer a clue as to how the legal team will fight the law Biden signed.

Montana’s attempted ban is unconstitutional because it shuts down an entire medium for expression while failing to serve a actual government interest, Covington’s lawyers argued. The state ban also relied on several “unsubstantiated findings” about the Chinese government’s control of TikTok’s parent and its ability to access user data, the firm said.

A federal judge entered a preliminary injunction in the case, finding Montana’s legislature appeared more interested in China’s role in TikTok than protecting Montana’s consumers. That matter remains pending.

The case is Tik Tok v. Garland, D.C. Cir., 24-1113, 5/7/24