Bryan M. Killian

Bryan serves as co-leader of the firm’s Climate Change and Sustainability Working Group and, throughout his career, has had a central role in high-profile litigation over the developing law around climate change. He briefed two of the four lead cases challenging US Environmental Protection Agency’s initial round of regulations concerning stationary-source greenhouse gas emissions under the Clean Air Act (CAA). He also represented fuel producers challenging the constitutionality of California’s Low Carbon Fuel Standard (LCFS). Bryan has represented oil-and-gas companies defending tort suits brought by state and local municipalities, alleging that the defendants are responsible for climate change. Bryan also briefs and argues on behalf of the domestic biofuels industry in state and federal cases related to the federal Renewable Fuel Standard (RFS).

In addition to claims arising from the alleged impacts of climate change, Bryan continues to defend clients on other environmental litigation and enforcement matters. On behalf of one of the owners of the oil well involved in the Deepwater Horizon disaster, Bryan developed successful arguments about choice-of-law and arguments about the scope of the Oil Pollution Act (OPA) and the Clean Water Act (CWA). Bryan has represented multiple companies in connection with CERCLA remediation and allocation disputes involving the federal government.

As part of his tax practice, Bryan has secured employment tax refunds for several railroads, in each case persuading the court of appeals to reverse district court rulings for the federal government. One of those wins opened up a circuit split, which the Supreme Court later resolved in the railroads’ favor. Bryan also has represented patent-holders seeking income-tax refunds concerning their intellectual property, as well as professional employer organizations (PEOs) concerning income-tax questions related to their businesses.

In several class actions, Bryan has briefed and argued motions to compel arbitration, as well as interlocutory appeals, under the Federal Arbitration Act (FAA). Several of those cases involved questions about whether various state-law defenses to arbitration are preempted under the FAA.

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 over non-Indians.

Bryan regularly teaches a law school course on the theory behind methods of statutory interpretation. Before starting his career as a lawyer, he 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 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.

Major victories Bryan has won for his clients include:

• TriNet Group v. United States (11th Cir. 2020): Secured a tax refund for of a Professional Employer Organization (PEO) in the US District Court for the Middle District of Florida and an affirmance from the Eleventh Circuit Court of Appeals on the question whether the PEO is the “employer” entitled to employment tax credits.
• Access Living of Chicago v. Uber (7th Cir. 2020): Won an appeal brought by a Chicago resident and a non-profit association in a case challenging the company’s compliance with the Americans with Disabilities Act. The panel unanimously held that the individual plaintiff lacked Article III standing to maintain her suit and that the association did not have a cause of action under the federal statute.
• 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 Wisconsin Central v. United States.
• 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.