Kris Kobach gave no-bid contract to law firm for 'emergency' of suing TikTok in Kansas

Public records show that Kansas Attorney General Kris Kobach awarded a no-bid contract to a law firm that is helping the state sue social media company TikTok.

The Kansas Attorney General's Office justified not seeking competitive bids when hiring law firm Cooper & Kirk because of an "emergency."

"Not seeking competitive bids is justified as an emergency under KSA 75-3739(a)(3) to stop ongoing and continuing damage to Kansas consumers that cannot wait for the ordinary bid process," chief deputy attorney general Dan Burrows wrote in a lightly redacted prior authorization request form obtained through a public records request. "Relief must be sought swiftly. Using this vendor will allow a suit to be on file within weeks."

Despite the promise of a lawsuit within weeks of the June 15 form, it wasn't until March 6 that Kobach's office filed the consumer protection lawsuit against TikTok and parent company ByteDance in Shawnee County District Court. His office has since filed requests to admit four out-of-state attorneys from Cooper & Kirk.

"We followed the law in making the outside hire, and it was approved by another state agency," Kobach spokesperson Danedri Herbert said in an email. "It is not uncommon or unusual for the Attorney General's Office to hire outside counsel, especially in complex consumer protection lawsuits."

Kansas joins other states as Cooper & Kirk clients against TikTok

Kansas law on contract procurement typically requires a competitive bidding process, but state statute does allow no-bid contracts in certain situations, including "when, in the judgment of the director of purchases, an agency emergency requires immediate delivery of supplies, materials or equipment, or immediate performance of services."

The contract says the the director of purchases in the Kansas Department of Administration authorized the attorney general's office to proceed without competitive bids, adding that "the ongoing and continuing damage to Kansas consumers constitutes an agency emergency that requires immediate performance of services."

"TikTok deceived parents by saying that the app was safe and age appropriate," Kobach said in announcing the lawsuit. "In reality, the app has promoted filth, profanity, sexual content, and alcohol and drugs to Kansas kids."

In the prior authorization, Burrows wrote that a competitive bidding process would likely cause several months of delays.

"The proposed vendor, however, is already representing five other states in largely identical investigations or lawsuits and therefore has knowledge of and access to relevant evidence which no other vendor could likely obtain on a short timeline (including investigatory materials received in foreign languages that need translation)," he wrote.

News reports indicate Cooper & Kirk is leading similar investigations or lawsuits against TikTok in Arkansas, Indiana, Iowa, New Hampshire and South Carolina. Cooper & Kirk is a prominent conservative law firm in Washington, D.C.

A previous records request involving Kobach's use of private emails for work purposes showed that he was communicating on May 3, 2023, about a Zoom meeting with Cooper & Kirk, but the contents of the emails were excluded from the KORA response.

"Resources brought to bear thus far can be deployed to Kansas' immediate advantage," Burrows added. "Kansas can sign onto the protective order that is already in place and thus immediately benefit and be able to bring a case to stop the ongoing, irreparable harm to consumers within a very short amount of time."

How much will Kansas pay Cooper & Kirk?

While a state database lists a contract between the attorney general's office and Cooper & Kirk, it isn't available online.

Through Kansas Open Records Act request, The Topeka Capital-Journal obtained a prior authorization request from the Kansas Department of Administration and the contract from the Kansas Attorney General's Office.

The prior authorization form listed a $500,000 estimate and said the "vendor has agreed to a 20% contingency fee." The contract only includes the contingency fee, meaning the law firm will only be paid if it wins the case. It also means the state isn't on the hook to directly pay the law firm's legal bills.

Had the estimate been $1 million or more, the contract would have had to go through a legislative oversight process.

The contract said law firm reduced its normal fee while promising to commit "significant" resources to the case. State employees will still be involved, and the contract specifies that any news releases or other public communications about the case will be issued solely through the attorney general's office.

More: Kansas attorney general Kris Kobach has hired more lawyers but is still short on staff

"Because of the nature of the alleged misconduct, the magnitude of the recovery effort, and the anticipated aggressive defense by the Defendants," the contract states, "the Attorney General has determined that it is necessary and appropriate to retain private counsel to assist his office in the representation of the State of Kansas to pursue such litigation and recovery."

The contract was signed by Kobach and David Thompson, the managing partner of Cooper & Kirk, on July 27 and became effective a day later. It lasts through the end of the TikTok matter, unless it is terminated earlier.

The Cooper & Kirk contract does include a provision that if the state terminates the contract, the state will have to pay the law firm for its costs plus a prorated contingency fee. That became an issue with Florida law firm Morgan & Morgan when Kobach terminated the contract and its attorneys claimed they were owed $2.8 million.

Accepting contingency fees in legal services contracts comes after Kobach's office previously expressed displeasure with the practice.

That was among several issues Kobach's office had with Morgan & Morgan's work on a natural gas price gouging case. Kobach had said it was "of interest" that the firm's leaders have "heavy leanings in the Democrat direction," but he said politics weren't the reason for firing them.

The attorney general ultimately replaced Morgan & Morgan with Hilgers Graben, a law firm co-founded by Nebraska Attorney General Mike Higlers, a Republican. The contract included an hourly fee and a contingency fee.

Jason Alatidd is a Statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.

This article originally appeared on Topeka Capital-Journal: Kansas AG Kris Kobach gave no-bid contract to law firm suing TikTok