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Littler Mendelson Declined to Sue Over Vaccine-or-Test Mandate

Dec. 2, 2021, 10:30 AM

The largest corporate law firm in the U.S. devoted to labor and employment, Littler Mendelson, declined to represent clients in legal challenges to the Biden administration’s vaccine-or-testing mandate, part of a broader trend in Big Law.

A number of other elite management-side practices are also on the sidelines as the U.S. Court of Appeals for the Sixth Circuit considers one of the most contentious and consequential workplace legal battles in recent history. That list includes Gibson Dunn, Jackson Lewis, Morgan Lewis, Jones Day, and Ogletree Deakins.

The many employers, trade associations, and conservative nonprofits challenging the Department of Labor’s emergency rule have had little trouble finding outside counsel, but they’ve largely turned to lesser-known firms, right-wing legal groups, boutique operations, and solo attorneys.

The absence of Littler Mendelson and comparable management-bar heavyweights is evidence, several legal observers said, of the tensions roiling corporate America on the sensitive issue of requiring workers to get vaccinated.

“A number of these law firms that would normally do this are going to be conflicted because they will definitely not want to be taking on a lawsuit that is against what so many of their other clients are supportive of,” said Dane Steffenson, a solo practitioner who was formerly an attorney with both DOL and Littler Mendelson.

Littler Mendelson’s decision to keep out of the fray reflects the division among its business clients on the rule’s legality and propriety, according to two sources familiar with how the firm has handled the matter. Both sources requested anonymity because they didn’t have approval to discuss private conversations.

Littler Mendelson spokeswoman Jennifer Klein didn’t respond to emails and a voicemail seeking comment.

Some companies support the government’s attempt to bolster vaccination rates through a workplace safety rule for the private sector. Others see the requirements—which the Fifth Circuit put on hold last month—as a cumbersome, untimely government intervention that they argue would set a dangerous regulatory precedent.

Big firms are wary of taking a stand that could alienate important clients, though one of the sources said Littler hasn’t foreclosed on the possibility of filing a motion at a later stage in the litigation.

Two notable exceptions to the trend are Crowell & Moring, an international law firm representing large companies, which filed a petition on behalf of Associated General Contractors of America and American Road & Transportation Builders Association; and Wiley Rein, a midsize firm that’s held in high esteem in Washington, D.C., which is representing the Republican National Committee.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Bound for High Court?

The regulation, issued by DOL’s Occupational Safety and Health Administration on Nov. 4, requires all U.S. businesses with 100 or more workers to ensure they’re fully vaccinated or tested for Covid-19 at least weekly and masked while indoors.

The U.S. government has asked the Sixth Circuit—which won a lottery to consolidate the many lawsuits filed against the rule—to reverse the Fifth Circuit’s stay. Many observers expect the case to wind up before the U.S. Supreme Court.

DOL lawyers are well-accustomed to drawing a Littler Mendelson attorney as opposing counsel in regulatory and other lawsuits brought by employers.

The prominent firms absent from the docket boast many high-profile litigators who used to hold senior positions in federal government. None of the other firms commented when spokespeople were contacted for this article.

Littler Mendelson attorneys had been in discussions with multiple outside groups about potentially challenging the OSHA rule, but, ultimately, the San Francisco-based global firm decided it didn’t want its brand associated with the litigation, the sources said.

Littler’s decision forced one of its traditional clients to find representation elsewhere. The Associated Builders and Contractors, which for many years has relied on the services of Littler shareholder Maury Baskin when suing DOL regulations, retained Wimberly, Lawson, Steckel, Schneider & Stine, a small firm based in Georgia, to file a petition seeking to overturn the rule.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com