According to public records, Kris Kobach, the Attorney General of Kansas, granted a contract to a law firm without a bidding process. This law firm is currently assisting the state in its lawsuit against the social media company TikTok.
The Kansas Attorney General’s Office defended its decision to hire law firm Cooper & Kirk without seeking competitive bids, citing an “emergency” situation.
In a prior authorization request form obtained through a public records request, chief deputy attorney general Dan Burrows justified the decision not to seek competitive bids as an emergency under KSA 75-3739(a)(3). According to Burrows, this approach is necessary to prevent further damage to Kansas consumers that cannot wait for the ordinary bid process. He emphasized the need for swift action, stating that using this vendor will enable a lawsuit to be filed within weeks.
Kris Kobach’s office took its time to follow through on its promise of a lawsuit against TikTok and parent company ByteDance. Despite the initial announcement in June, the consumer protection lawsuit was only filed on March 6 in Shawnee County District Court. In an effort to strengthen their legal team, Kobach’s office has also requested the admission of four out-of-state attorneys from Cooper & Kirk.
“We adhered to the law when we decided to hire someone from outside, and this decision was given the green light by another state agency,” clarified Danedri Herbert, spokesperson for Kobach. “It is quite common and not out of the ordinary for the Attorney General’s Office to bring in outside attorneys, especially when dealing with intricate consumer protection lawsuits.”
Kansas joins other states as Cooper & Kirk clients against TikTok
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Under Kansas law, the procurement of contracts usually follows a competitive bidding process. However, there are exceptions to this rule, as outlined in state statute. One such exception is the allowance for no-bid contracts in specific circumstances. For instance, when the director of purchases determines that an agency emergency necessitates the immediate delivery of supplies, materials, or equipment, or the prompt provision of services.
According to the contract, the director of purchases in the Kansas Department of Administration approved the attorney general’s office to proceed without competitive bids. The contract states that the ongoing and continuing harm to Kansas consumers is considered an agency emergency that necessitates the immediate provision of services.
“TikTok misled parents by claiming that the app was safe and suitable for children,” Kobach expressed during the announcement of the lawsuit. “However, in truth, the app has been actively promoting explicit content, profanity, sexual material, as well as the consumption of alcohol and drugs to young individuals in Kansas.”
Burrows stated in the prior authorization that implementing a competitive bidding process could potentially result in significant delays lasting for several months.
According to the author, the vendor being considered for the project is currently representing five other states in similar investigations or lawsuits. This gives them a unique advantage, as they have access to relevant evidence that would be difficult for any other vendor to obtain within the given timeframe. This includes investigatory materials received in foreign languages that require translation.
Cooper & Kirk, a well-known conservative law firm based in Washington, D.C., is taking the lead in conducting similar investigations or filing lawsuits against TikTok in various states, including Arkansas, Indiana, Iowa, New Hampshire, and South Carolina.
In a previous records request, it was revealed that Kobach had used private emails for work-related communication. Specifically, on May 3, 2023, he was discussing a Zoom meeting with Cooper & Kirk. However, the details of these emails were not included in the response to the KORA request.
According to Burrows, Kansas can make immediate use of the available resources to its advantage. By signing onto the existing protective order, the state can swiftly benefit and take action to halt the continuing and irreversible harm being inflicted upon consumers.
How much will Kansas pay Cooper & Kirk?
The contract between the attorney general’s office and Cooper & Kirk is not available online, although it is listed in a state database.
The Topeka Capital-Journal acquired a previous authorization request from the Kansas Department of Administration and the contract from the Kansas Attorney General’s Office through a Kansas Open Records Act request.
The prior authorization form indicated an estimated amount of $500,000 and stated that the vendor has agreed to a 20% contingency fee. The contract solely encompasses the contingency fee, signifying that the law firm will only receive payment if they are successful in the case. Moreover, this arrangement relieves the state from directly bearing the legal expenses of the law firm.
If the estimate had exceeded $1 million, the contract would have been subject to a legislative oversight process.
The law firm agreed to lower its usual fee in the contract while pledging to allocate substantial resources to the case. State employees will continue to be involved, and the contract explicitly states that all news releases or public communications regarding the case will be exclusively issued by the attorney general’s office.
The contract states that due to the nature of the alleged misconduct, the magnitude of the recovery effort, and the anticipated aggressive defense by the Defendants, the Attorney General has decided to hire private counsel. This move is deemed necessary and appropriate to aid the office in representing the State of Kansas in pursuing litigation and recovering the damages.
Kris Kobach and David Thompson, the managing partner of Cooper & Kirk, signed the contract on July 27. The contract became effective the following day and will remain in effect until the TikTok matter is resolved, unless terminated earlier.
The contract between Cooper & Kirk and the state does have a provision that states if the state ends the contract, they will be required to pay the law firm for their costs along with a prorated contingency fee. This issue arose with Florida law firm Morgan & Morgan when Kobach terminated the contract and their lawyers argued that they were owed $2.8 million.
Kobach’s office has expressed displeasure with the practice of accepting contingency fees in legal services contracts.
Kobach’s office had a number of concerns about the work done by Morgan & Morgan on a natural gas price gouging case. Although he noted that the firm’s leaders had strong Democratic affiliations, Kobach emphasized that politics did not play a role in their termination.
The attorney general ultimately decided to replace Morgan & Morgan with Hilgers Graben, a law firm co-founded by Nebraska Attorney General Mike Hilgers, who is a Republican. The contract between them consisted of both an hourly fee and a contingency fee.
