Bryan M. Killian

Throughout his career, Bryan has had a central role in high-profile environmental matters. He briefed the US Court of Appeals for the DC Circuit litigation challenging US Environmental Protection Agency’s regulation of stationary-source greenhouse gas emissions. He challenged the constitutionality of California’s low carbon fuel standard on behalf of out-of-state fuel producers. He represented one of the owners of the oil well involved in the Deepwater Horizon disaster. And he represents defendants in climate-change suits brought by state and local municipalities. Bryan also regularly briefs and argues on behalf of the domestic biofuels industry in state and federal cases related to the federal Renewable Fuel Standard.

Bryan’s non-environmental matters arise in a variety of areas, and recent representative examples include work in arbitration, tax, and American Indian law. Bryan represents companies seeking to compel arbitration under the Federal Arbitration Act and has persuaded federal courts of appeal to overturn district court decisions refusing to compel arbitration. He has convinced the US Court of Appeals for the Eighth Circuit to unanimously reverse a district court decision that refused to issue a tax refund to a major US railroad, opening up a circuit split on the question. Bryan co-leads Morgan Lewis’s American Indian law practice and has been involved in a range of cases arising out of fee-to-trust conversions and tribal jurisdiction.

Bryan previously served as a law clerk to Justice Antonin Scalia of the US Supreme Court and to Judge Paul Niemeyer of the US Court of Appeals for the Fourth Circuit. Bryan also was a Bristow Fellow in the Office of the Solicitor General, where he worked on federal civil and criminal appeals and on the federal government’s cases in the US Supreme Court. He is a member of the Fourth Circuit Judicial Conference.

As a law student, Bryan’s pro bono work on copyright was featured in the Harvard Law Bulletin; and as a lawyer, he successfully resolved an authorship dispute in federal court between a Connecticut museum and a former volunteer.

Major victories Bryan has won for his clients include:

• Arnold v. HomeAway and Arnold and Seim v. HomeAway (5th Cir. 2018): Both cases involved the enforceability of an arbitration agreement within terms and conditions that our client could modify. Bryan argued both cases back-to-back on the same day before the same panel. The panel reversed the Texas district court and held that both plaintiffs needed to arbitrate.
• Union Pacific v. United States (8th Cir. 2017): Bryan successfully argued that a federal tax on “money remuneration” does not tax stock. Two appellate courts and three district courts had rejected this argument before the US Court of Appeals for the Eighth Circuit unanimously accepted it. The victory opened up a circuit split, and in June 2018, the US Supreme Court upheld the Eighth Circuit’s decision.
• In re: Tronox: Avoca Claimants v. Kerr-McGee Corp. (2nd Cir. 2017): Thousands of plaintiffs in Pennsylvania filed toxic-tort claims against our client. Bryan argued that the claims were derivative of claims that had been part of another company’s bankruptcy. A panel of the US Court of Appeals for the Second Circuit agreed that the plaintiffs could not litigate their claims because those claims were barred by an injunction entered as part of a $5 billion settlement in the bankruptcy case.
• In re: Lawrence Teachers Association (NY 2017): The Appellate Division, Third Department, reversed the New York state supreme court and held that our client, a school district in New York, did not have to bargain with its teachers union before hiring a private company to run the district’s universal prekindergarten program.
• Minnesota Trucking Association v. Stine (D. Minn. 2017): On behalf of multiple trade associations, Bryan defended the constitutionality of a Minnesota law that requires blending biodiesel.
• Vonage v. Merkin (9th Cir. 2016): Bryan persuaded the US Court of Appeals for the Ninth Circuit to reverse a California district court that refused to compel arbitration of a purported class action. The panel initially ruled for our client in a 2–1 decision, but after Bryan opposed the plaintiffs’ rehearing petition, the dissenting judge joined the majority, securing a unanimous pro-arbitration decision.