Keller Lenkner expands its plaintiffs' firm strategy into D.C.

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A general view of the National Mall is seen from the rebuilt cast-iron dome of the U.S. Capitol. REUTERS/Carlos Barria

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Plaintiffs’ firm Keller Lenkner is launching a Washington, D.C., office, formally hanging out its shingle in a third city since it was founded in Chicago in 2018.

The office will be headed by partner Warren Postman and staffed by four associates to start, according to the firm. Two more associates are slated to join once they finish federal court clerkships, a background many of the firms’ 38 attorneys share.

Keller Lenkner has more than doubled in size in the last year, and has grown significantly from the six attorneys that launched it, Postman said. Opening up in D.C. is part of its bid for more of the capital's legal talent, he said.

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The firm was founded by partner Ashley Keller, managing partner Travis Lenkner and Keller’s business partner Adam Gerchen after they sold their litigation finance fund, Gerchen Keller Capital, to financier Burford Capital Limited in a $160 million deal.

Keller and Lenkner each clerked for now-retired Justice Anthony Kennedy at the U.S. Supreme Court, said Postman, who also clerked at the high court.

The firm has planted its flag in mass arbitrations, using it as a strategy against companies like Amazon.com Inc and Intuit Inc, which have required customers to arbitrate claims rather than file class actions. Keller Lenkner filed 75,000 arbitration demands accusing Amazon of using Alexa devices to record customers without their consent, and not long afterward Amazon dropped its requirement that customers arbitrate their disputes. Another arbitration claim onslaught orchestrated by the firm against Intuit was followed by U.S. District Judge Charles Breyer's rejection of a $40 million class action settlement after the judge expressed concerns that the deal was Intuit's way of dodging the arbitration.

In addition to its clerking bonafides, Keller Lenkner bills itself as different from its peer plaintiffs’ firms. In January, the firm said nearly 80% of its attorneys had come from defense firms like Jones Day and Latham & Watkins.

“We regularly get interest from lawyers at major law firms in D.C.,” said Postman, who previously was vice president and chief counsel for appellate litigation at the U.S. Chamber Litigation Center. “We’ve been really amazed and pleased with the amount of interest we’ve gotten from talented lawyers who want to do something a little more entrepreneurial.”

Postman said that seeking out attorneys with a defense-side background comes with some complications. Last month, the firm was disqualified from representing consumers in a proposed class action against Facebook after U.S. District Judge Lucy Koh of San Jose, California, found that it had violated California rules of professional conduct by failing to immediately set up a firewall between its Facebook investigation and an associate who had worked hundreds of hours representing the company while at Kellogg, Hansen, Todd, Figel & Frederick.

That associate, Albert Pak, is among the Keller Lenkner attorneys launching the D.C. office, Postman said.

Postman said the firm has outside ethics counsel it consults with regularly on issues involving its attorneys’ backgrounds, and an ethics expert had told the firm it had done enough in the Facebook situation. He said the variability in different states’ conflict rules can make things especially complicated.

But he also said he thinks Keller Lenkner faces extra heat from the defense side than your average plaintiffs’ firm because of its attorneys’ histories.

“It is striking to me how polarized lawyers’ views are towards the different sides of the 'v' at top law firms,” Postman said. “We get a slightly more aggressive response from defendants, partly because they think we betrayed the cause.”

Update: This story has been corrected to identify the founders of Gerchen Keller Capital who sold the company to Burford Capital Limited.

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