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Brendan J. Crimmins

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Brendan Crimmins represents clients in complex litigation and regulatory matters.

Brendan has represented a diverse range of clients—both defendants and plaintiffs—in federal and state courts throughout the country.  He has substantial experience representing private equity firms and their portfolio companies in disputes with lenders, minority shareholders, accounting firms, and other litigants.  He has also represented consumers and investors in litigation against drug companies, securities issuers, investment fiduciaries, and railroads. Brendan’s experience covers a broad spectrum of substantive issues, including corporate and fiduciary-duty law, mergers and acquisitions, contract disputes, federal preemption, administrative law, securities law, antitrust and unfair competition, federal jurisdiction, telecommunications, environmental law, foreign sovereign immunity, energy regulation, and intellectual property.

Brendan has significant experience in appellate litigation.  He has led the briefing in dozens of appeals in the Supreme Court of the United States, federal courts of appeals, and state supreme courts.  And he has presented oral argument in the Sixth, Eighth, and D.C. Circuits.  In 2018, Brendan received a Distinguished Amicus Service Award from the International Municipal Lawyers Association for exemplary advocacy on behalf of local-government interests in the Supreme Court. In 2014, Brendan was recognized in a Reuters analysis as one of 75 most influential Supreme Court advocates.

Brendan provides pre-litigation counseling and strategic advice to clients on a wide range of substantive issues. He also advises clients on questions of litigation and appellate strategy, including Supreme Court practice.

From March 2015 to January 2017, Brendan served in the U.S. Treasury Department as Deputy General Counsel and, before that, Senior Counsel.  At Treasury, Brendan oversaw legal advice on issues relating to housing finance; the Troubled Assets Relief Program; general law, ethics, and regulation; the Affordable Care Act; and tax policy.  He also managed responses to congressional investigations and coordinated the defense of significant litigation matters arising from Treasury’s responses to the 2008 financial crisis and its implementation of the Affordable Care Act.  Secretary Jacob J. Lew awarded Brendan the Treasury Department’s Distinguished Service Award in recognition of his contributions. Earlier in his career, Brendan served in the Office of the U.S. Solicitor General as a Bristow Fellow and was a law clerk for the Chief Judge of the U.S. Court of Appeals for the Fifth Circuit.

Noteworthy Representations

Brendan has represented clients in two path-marking Supreme Court cases involving the relationship between federal drug regulation and state tort law. In Wyeth v. Levine, 555 U.S. 555 (2009), the Supreme Court affirmed our client’s judgment against a drug manufacturer and rejected the manufacturer’s contention that the Food and Drug Administration’s approval of the labeling for a brand-name prescription drug preempts lawsuits for failure to warn. In Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), the Supreme Court preserved and strengthened the Levine decision, holding that preemption requires an FDA action with the force of law prohibiting the manufacturer from adding an adequate warning.

At the trial level, Brendan is currently representing a state attorney general in pursuing claims arising from the opioid crisis against opioid manufacturers and distributors.

In the regulatory context, Brendan has served as lead counsel on behalf of a major telecommunications company in successful challenges to orders of state public utility commissions.  BellSouth Telecomms., Inc. v. Kentucky Pub. Serv. Comm’n, 669 F.3d 704 (6th Cir. 2012); BellSouth Telecomms., Inc. v. Tennessee Regulatory Auth., No. 3:08-00059, 2011 WL 767122 (M.D. Tenn. Feb. 25, 2011).

Selected Appellate Experience

Represented a large apartment owner in appellate litigation involving preemption under the Communications Decency Act. Case settled favorably after full briefing. La Park La Brea A LLC v. Airbnb Inc., No. 18-55113 (9th Cir.).

Represented the State of New Hampshire in obtaining affirmance on appeal of the largest jury verdict in New Hampshire history. New Hampshire v. Hess Corp., 126 A.3d 266 (N.H. 2015).

Successfully represented investors in a Supreme Court appeal involving the timeliness of a breach-of-fiduciary-duty claim challenging the prudence of investment options in an ERISA retirement plan. Tibble v. Edison Int’l, 135 S. Ct. 1823 (2015).

Led the briefing, at both the certiorari and merits stages, in a successful effort to obtain Supreme Court review and vacatur of an unfavorable court of appeals decision interpreting the fiduciary duty of a mutual fund investment adviser under the Investment Company Act of 1940.  Jones v. Harris Assocs. L.P., 559 U.S. 335 (2010).

Represented investors in a Supreme Court case involving whether a company’s omission of required information in a securities filing violates SEC Rule 10b-5. Case settled favorably after full briefing. Leidos, Inc. v. Indiana Pub. Ret. Sys., No. 16-581 (U.S.).

Successfully represented injured railroad worker in a Supreme Court case establishing the causation standard under the Federal Employers’ Liability Act. CSX Transp., Inc. v. McBride, 564 U.S. 685 (2011).

Led the briefing in a precedent-setting appeal involving the statute of limitations for investor-fraud claims.  The Illinois Supreme Court held that the trial court had erred in dismissing our client’s claims.  Khan v. Deutsche Bank AG, 978 N.E.2d 1020 (Ill. 2012).

Successfully represented a financial executive in obtaining reversal of a criminal conviction on appeal. United States v. Grimm, 738 F.3d 498 (2d Cir. 2013).

Successfully represented a patent owner in obtaining reversal of a decision dismissing infringement claims under the doctrine of patent exhaustion. Helferich Patent Licensing, LLC v. New York Times Co., 778 F.3d 1293 (Fed. Cir. 2015).

Submitted briefs and presented oral argument as court-appointed amicus curiae in a disbarment appeal. In re Navron Ponds, No. 07-7101 (D.C. Cir. Apr. 17, 2009).

Obtained affirmance on appeal of a federal bank-robbery conviction while serving in the Department of Justice.  United States v. Lawson, 410 F.3d 735 (D.C. Cir. 2005).

Selected Trial Experience

Represented two private equity firms and several members of the board of directors of Clear Channel Outdoor Holdings, Inc. (CCOH) in a series of lawsuits by minority shareholders challenging an intercompany cash-management arrangement between CCOH and its parent corporation.  All litigation resolved favorably for our clients. GAMCO Asset Mgmt., Inc. v. Hendrix et al., No. 2018-0633 (Del. Ch. Ct.); Norfolk Cty. Ret. Sys. v. Hendrix et al., No. 2017-0930 (Del. Ch. Ct.); In re Clear Channel Outdoor Holdings, Inc. Derivative Litig., C.A. No. 7315-CS (Del. Ch. Ct.).

Represented a major financial institution in a multi-day evidentiary hearing regarding an IRS subpoena seeking tax accrual workpapers.  The district court held that the measurement and analysis contained in those papers was protected from discovery.  Wells Fargo & Co. v. United States, Nos. 10-57 (JRT/JJG) & 10-95 (JRT/JJG), 2013 WL 2444639 (D. Minn. June 4, 2013).

Selected Regulatory Experience

Successfully represented a major telecommunications company in defending Federal Communications Commission orders reforming the universal-service and intercarrier-compensation systems. In re FCC 11-161, 753 F.3d 1015 (10th Cir. 2014).

Successfully represented a major energy company in a series of lawsuits and regulatory proceedings arising from the California energy crisis of 2000-2001. E.g., CDWR v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008); California v. Powerex Corp., 274 F. App’x 574 (9th Cir. 2008).

Currently representing telecommunications trade associations in lawsuits challenging state net-neutrality regulations. American Cable Ass’n v. Scott, No. 18-00167 (D. Vt.); American Cable Ass’n v. Becerra, No. 18-02684 (E.D. Cal.).

Selected Investigations Experience

Represented two private equity firms and several members of the board of directors of Clear Channel Outdoor Holdings, Inc. (“CCOH”) in an investigation by a special litigation committee of the CCOH board appointed in connection with a shareholder derivative lawsuit.  In re Clear Channel Outdoor Holdings, Inc. Derivative Litig., C.A. No. 7315-CS (Del. Ch. Ct.).

Represented a former government official in a congressional investigation regarding Russian interference in the 2016 election.

Selected Publications and Speaking Engagements

Publication

Tips for Representing Consumers and Investors in the Supreme Court, 44 Litigation 2 (2018) (co-authored with David C. Frederick)

Speaking Engagements

Panelist, Merits Briefs, National Association of Attorneys General Supreme Court Advocacy Seminar, Washington, D.C. (Nov. 29, 2018)

Panelist, Drug Labeling, Preemption, and State Consumer Protection Laws, Eleventh Annual Judicial Symposium on Civil Justice Issues, Law & Economics Center, Antonin Scalia Law School, George Mason University, Fairfax, VA (May 22, 2017)

Speaker, Supreme Court Case Preparation, Academy of Rail Labor Attorneys, 28th Annual Convention, Coronado Island, CA (May 10, 2017)

Panelist for discussion of documentary film Lost in the Fine Print about arbitration; event sponsored by the American Constitution Society, Alliance for Justice, Center for American Progress, and Economic Policy Institute, Washington, D.C. (Jan. 29, 2015)

Panelist on the Universal Service Decision, Federal Communications Bar Association CLE program entitled: 10th Circuit Upholds FCC’s Universal Service and Inter-carrier Compensation Transformational Order: What’s Next?, Washington, D.C. (July 1, 2014)

Speaker, Fosamax Preemption, New Jersey Association for Justice, Boardwalk Seminar, Atlantic City, N.J. (May 1, 2014)

Panelist, Get Five Votes: Merits Briefs, State & Local Legal Center, Supreme Court Practice Seminar, Georgetown Law Center, Washington, D.C. (Mar. 4, 2014)

Speaker, ABA Section of Litigation Roundtable on Mutual Pharmaceutical Company, Inc. v. Bartlett and Preemption in Pharmaceutical Litigation (Aug. 7, 2013) (teleconference)

Presentation to the Academy of Rail Labor Attorneys on the Supreme Court’s decision in Kurns v. Railroad Friction Products Corp., Washington, D.C. (Apr. 26, 2012)

Speaker, Practising Law Institute webinar / conference call on Jones v. Harris Associates and the Supreme Court’s Ruling on Advisers’ Fees (Apr. 20, 2010)

Speaker, Roundtable on Mutual Funds regarding Jones v. Harris Associates, Boston University School of Law, Boston, MA (Dec. 4, 2009)

Education

University of Texas School of Law, J.D., with highest honors, 2003

  • Grand Chancellor (highest GPA in class through second year)
  • Member, Texas Law Review, 2001-2003

University of Notre Dame, B.A., summa cum laude, 2000

  • Phi Beta Kappa

Clerkship

Law Clerk, Chief Judge Carolyn Dineen King, U.S. Court of Appeals, Fifth Circuit, 2003-2004

Government Service

Deputy General Counsel, U.S. Department of the Treasury, 2016-2017

Senior Counsel, Office of the General Counsel, U.S. Department of the Treasury, 2015-2016

Bristow Fellow, Office of the Solicitor General, U.S. Department of Justice, 2004-2005


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