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Litigator of the Week: For Paul Clement, Jumping into a SCOTUS Case at the Last Minute is “What We Do”

Last August, Kirkland & Ellis partner Paul Clement was minding his own business, not thinking much about arbitration or class actions. He was prepping for an important U.S. Supreme Court oral argument testing the scope of the Alien Tort Statute, set for October 11.

Then came the phone call from two fellow titans of the Supreme Court bar: Neal Katyal of Hogan Lovells and Kannon Shanmugam of Williams & Connolly. They represented employers in three high-profile cases before the high court, consolidated under the name of Epic Systems Corp. v. Lewis. The cases were all about whether arbitration agreements could preclude employees from resorting to class actions to resolve disputes in workplace disputes. The cases were scheduled to be argued on October 2.

“They said there might be a possibility of me getting involved in the case,” Clement recalled this week. Even though jumping in could blow up his preparation for the October 11 case, Clement said, “I was delighted. When I got the call it was a surprise, but it was a great opportunity to get involved in a very important case.”

The phone call led to Clement arguing the Epic case himself—not Katyal or Shanmugam. On May 21, Clement celebrated a clear victory in Epic when Justice Neil Gorsuch, writing for a 5-4 majority, favored arbitration over class actions.

“It was a pretty definitive win for the employers,” Clement said. Unlike other split decisions that leave loose threads behind, he added, “It really does resolve the issue and doesn’t leave a lot of possible trap doors.”

Why Clement got to argue the Epic case when either Shanmugam or Katyal could have carried the ball to victory may never be fully explained. “I’m kind of the wrong person to ask,” Clement said.

Katyal and Shanmugam have declined to talk about it. But at some point last summer, they apparently reached an impasse over who would argue. Instead of flipping a coin, they reached out to someone else.

The fact that they reached out to Clement and not another star advocate is easier to fathom. The former George W. Bush-era solicitor general prides himself and his appellate team on being able to climb aboard fast-moving Supreme Court cases at the last minute. He has argued 92 cases before the justices.

“Jumping into cases relatively late in the process is what we do,” the 51-year-old Clement said. “You know, sometimes when you have three cases that are essentially consolidated for argument, people have ideas about how to best argue the case, or who should argue the case. Sometimes you end up going with somebody who hasn’t been involved just because that’s the way to get everybody on the same page.”

Once Clement joined the team, he said, “Both Neal and Kannon could not have been better or more gracious” in looping him into the final briefing before oral argument. “From that point forward, it was a very cooperative process.”

Kirkland partner Megan Wold became “kind of my right hand person” in preparation for the Epic argument, Clement said, and she was at his side during his 20 minutes of oral argument. Clement was conversant with the arbitration issues in part because of his role in the 2013 case American Express v. Italian Colors, even though he was on the pro-class action side. Clement emerged from the argument fairly confident of victory, and he was right.

Clement argued a total of six cases before the high court this term—almost routine for him, but an astronomical number for most. He won four of his cases, one is still pending, and then on May 14, came Murphy v. NCAA—the blockbuster sports betting case. Clement represented the NCAA, which lost to New Jersey governor Philip Murphy. The winning lawyer was Gibson, Dunn & Crutcher’s Theodore Olson, who hired Clement as deputy SG in 2001.

How did Clement feel about losing in the gambling case? He put it this way: “You know, this was a better Monday than last Monday.”

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