Brendan Johnson, head of the business litigation group for Robins Kaplan and former U.S. attorney for South Dakota. (Courtesy of Robins Kaplan)
Sioux Falls lawyer Brendan Johnson has a last name that carries a lot of weight in South Dakota political circles.
His father, Tim Johnson, was the last Democrat to serve in any statewide elected office from the now-solidly red state. The elder Johnson, who served in the U.S. House of Representatives from 1987 to 1997 and the Senate from 1997 to 2015, opted against another reelection bid about a decade ago.
When his father left office, the younger Johnson was serving as U.S. attorney for the District of South Dakota, a politically appointed role that had him overseeing all federal prosecutions in the state. Many of the state’s Democrats saw Brendan Johnson as a political heir apparent.
But it was not to be.
Upon his departure from the U.S. Attorney’s Office in 2015, Johnson took a position with Robins Kaplan, one of the top 200 law firms in the U.S. by revenue. Since then, the Vermillion native has stayed in the spotlight for work that sometimes mirrors the Democratic political ideals that characterized his father’s service.
Brendan Johnson defended the voter-backed constitutional amendment legalizing recreational marijuana before the South Dakota Supreme Court. He lost that battle, but won plenty of others, including a case in which he took on the Indian Health Service on behalf of the Rosebud Sioux Tribe. More recently, he filed a lawsuit against the state of South Dakota that alleges the Department of Health violated the civil rights of The Transformation Project by canceling a state contract with the group, which advocates for transgender people.
This month, Johnson, who’s 48 years old, was named head of his firm’s business litigation group. In a Q&A with South Dakota Searchlight, Johnson explains why the life he’s chosen is more fulfilling than the one so many of the state’s Democrats wanted for him.
(Editor’s note: This conversation has been edited for length and clarity)
First off, let me ask about Robins Kaplan, because I think to the average non-lawyer, there’s little daylight between Robins Kaplan and Davenport Evans or Lynn Jackson (Sioux Falls law firms).
You bet. We have offices in New York, L.A., Silicon Valley, Boston, Minneapolis, which is the mothership, and then South Dakota and North Dakota. Nationally, we have about 200 attorneys. What makes us a little unique in the market is that our focus is really on litigation, as opposed to being a full service law firm for everyone.
So taking cases to a judge, taking cases to trial, that’s what the bread and butter is there?
Yeah, exactly. For some of our biggest cases, we had the largest jury verdict in the history of Minnesota against BMO, the bank. That one, with pre- and post-judgment interest, is valued at over $1.1 billion. We also represented the state of Minnesota against (e-cigarette maker) Juul, which settled after several weeks of trial. So we do a lot of real high-profile litigation.
For me, when I feel like somebody is being bullied, when I feel like civil rights are being violated, those are cases that become a priority, even if they're not potentially lucrative.
Can you tell me a little bit about this new role as chair of the National Business Litigation Group? What does that entail?
We have, at any given time, anywhere from 70 to 100 of our attorneys doing commercial litigation. So in the new role, I’ll be leading that group.
What can you tell me about cases like The Transformation Project? Why do you or your firm take on cases like that, where there’s no assurance of a payback, or in the case of The Transformation Project where you know that there won’t be?
Let me just start off with a caveat. When we do civil rights cases like The Transformation Project, if we are successful, we petition the court for attorney fees. So there is a possibility that we could recover costs. Now, that being said, cases like The Transformation Project, the civil rights work that we’re really passionate about, tends not to be our most profitable work.
Part of the reason it’s important to the firm is that we were started 85 years ago by two Jewish lawyers in the Twin Cities. And at the time, none of the big law firms would hire them because they were Jewish. So what has always been in the firm’s DNA is a commitment to civil rights and equal opportunity.
For me, when I feel like somebody is being bullied, when I feel like civil rights are being violated, those are cases that become a priority, even if they’re not potentially lucrative. We have to say no all the time to cases that I would love to take, but we just can’t. But we, I think, do more than our fair share when it comes to taking those cases.
Do you think South Dakota has enough lawyers or enough law firms willing to take on those sorts of risky contingency or pro bono cases?
Absolutely not. One hundred percent the answer is no. There is so much need in our state for civil rights work and folks who are willing to do this when the payday is questionable, or it’s not there. I really hope that we see more lawyers in the next generation coming up, who feel a responsibility to get involved in these cases, because there is a dramatic need.
What is your sales pitch to a young lawyer, maybe somebody who just graduated from the law school at the University of South Dakota and passed the bar. Why would you want to pursue work in civil rights cases?
It gives meaning to your practice. I would not want to be a lawyer who comes to the office every day and doesn’t like what I do. I get to walk down the hall and honestly say to my colleagues almost every day, “Do you realize how lucky we are, that we love coming to work every day?” It’s because we get to fight in these battles.
A lot of people who aren’t you foresaw a different career path for you, particularly after your stint as U.S. attorney. What was it that made you decide to go this way and not that? What do you feel you’ve been able to accomplish in your current role that you might not have in the political arena?
The most honest way to answer that question is first with the political realities. I’ll tell you a story, and this is absolutely true. When my father first announced that he wasn’t going to run again, people approached me and they said, “You need to run for political office in South Dakota.” And I really considered it at the time. I remember after Senator Rounds won his race decisively (in 2014). I said to my son, who’s now a senior in high school, “I think my ceiling would have been 42%.” And my son, who loves politics and studies this stuff closely, said, “Dad, I’ve got to say: I think your ceiling is actually closer to 30%.” He’s right. The reality is there’s not a statewide office I could run for in South Dakota and would win.
When I look at politics today, our country is so polarized that even if you get elected, what are you actually going to do? And in my job now, if we're successful for our clients, we're going to be able to make a difference in their lives.
The second part of it, though, even if politics were different in South Dakota, is that I love what I’m doing. With my dad, there were a lot of great things that he was doing. There’s also a lot of that stuff that, at this age, I would have no interest in doing — going to different places and shaking hands with strangers. I wouldn’t have that fire in my belly for that. But also, when I look at politics today, our country is so polarized that even if you get elected, what are you actually going to do? And in my job now, if we’re successful for our clients, we’re going to be able to make a difference in their lives.
When you look back, do you think, ‘Gosh, I wish you would have tried that?’ Is there any fire that’s still there?
Zero. I have zero ambition to ever go into politics. That train has passed. And I love what I’m doing. Much more now, I think, than I would enjoy politics, for the reasons that we’ve discussed.
Where do you see the Democratic Party headed in South Dakota?
Part of what I see as key for the future in South Dakota is continuing to invest in some of these ballot initiatives. That’s an opportunity for Democrats like myself to work together on issues with Republicans who are willing to work with us to try to get things done. Whether it’s been Medicaid expansion, medical marijuana, the reality is, we’ve been able to accomplish more than most politicians have over the course of the last few years.
When I would be going out to one of the reservations as U.S. attorney, the most common question people would ask me was, 'Do you bring security with you?' And the answer was 'hell no.'
Your work at Robins Kaplan has intersected with your passion for Native American issues. What role does private litigation play in that? What can legal action offer that maybe the political process can’t?
We successfully sued the Indian Health Service in a pro bono case on behalf of the Rosebud Indian Reservation, and the courts declared that Congress was violating its treaty responsibilities to provide adequate health care on the reservation. So that gives the tribes an opportunity to go to Washington to talk to the congressional delegation, to talk to other members of Congress, and to talk about how fully funding health care on the reservation is not only the right thing to do morally, but also the right thing to do under the law.
The second example that I would give is, we represent a number of tribes in South Dakota and across the country in our lawsuit against the opioid manufacturers and distributors. We successfully settled those cases. And for some of the larger reservations that we represented, including Pine Ridge and Rosebud, that’s going to mean millions of dollars going to those tribes for new substance abuse prevention programs.
What’s one thing you would tell folks about Indian Country?
People don’t understand just how many good, decent people there are on the reservations fighting to improve their communities on a daily basis. When I would be going out to one of the reservations as U.S. attorney, the most common question people would ask me was, “Do you bring security with you?” And the answer was “hell no.” I get treated exceptionally well on the reservations in South Dakota. The people there are just such good and decent people. I worry that sometimes that gets lost.
You spent the Obama years as U.S. attorney for the District of South Dakota. What are you proudest of during that time?
What I’m proudest of is two things. One, our work in Indian Country and the difference we made with the Department of Justice. We had an event where we brought out all of these national Department of Justice leaders to Pine Ridge. Looking back, some of the names people would recognize that came on that trip: (former Attorneys General) Eric Holder and Loretta Lynch, (former Deputy Attorney General) Sally Yates. And we were able to get a lot more resources from DOJ to Indian Country at that time. So I’m really proud of that. I’m also really proud that we were one of the first offices to get some of the largest convictions in the history of the country when it came to human trafficking.
SUPPORT NEWS YOU TRUST.
GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.