Kenya Davis on Strengthening the “S” in ESG

Kenya Davis walks in different worlds united by a common thread. The echoes ring across seven years in Big Law, 13 as an Assistant U.S. Attorney in D.C., and now nearly two years as a partner with Boies Schiller Flexner: Davis fosters a world where a commitment to human rights is both paramount and achievable.

Her work has often centered around human trafficking, representing victims of sex abuse and helping companies create compliance pathways for safe labor practices. During her time in government, Davis channeled her passion for equitable justice into 50 trials and more than 100 grand jury investigations. She also served as the human trafficking coordinator and co-chair of the D.C. Human Trafficking Task Force, a 75-person group focusing on prosecuting more traffickers, aiding victims and preventing future trafficking.

Davis takes on similar problems from a different angle as a partner in Boies Schiller’s global investigations and white-collar crime group, including a focus on environmental, social and governance (ESG) matters, where she brings her expertise in human trafficking issues to bear by helping companies root out labor trafficking two or three times removed within their supply chains. She has handled investigations and implemented compliance strategies for increasingly (and necessarily) stringent guidelines coming down both nationally and internationally.

Crediting Boies Schiller’s emphasis on humanitarian cases as part of her reason for joining the firm, Davis continues to represent victims of sex trafficking and sexual abuse in private practice. Currently, she represents a group of snowboarders who sued a former coach for sexual abuse, as well as U.S. Ski and Snowboard and the U.S. Olympic Committee for covering up the alleged abuse. That coverup, Davis explains, can include trafficking implications: “It is basically an exchange: For the athlete’s compliance with and silence around the sexual abuse and exploitation, they get the once in a lifetime chance to continue to pursue medals,” she says. “Of course, those medals effectively turn into money for the Olympic Committee, and for Ski and Snowboard.” The coach who allegedly perpetrated the abuse has been suspended by the U.S. Center for SafeSport.

The Adult Survivors Act, a window for adult victims of abuse to submit new claims in New York (and California’s similar Sexual Abuse and Cover Up Accountability Act), has driven much of her recent sexual abuse practice. Recently, Davis filed suit against L.A. Reid, the famed former CEO of Epic Records, who has worked with artists such as Usher and TLC. Davis represents Drew Dixon, a former employee of Reid’s whose claims include sexual assault. Dixon alleges that Reid harassed and assaulted her repeatedly and retaliated against her when she successfully avoided his sexual advances, leaving her unable to sign critically acclaimed artists and excel within the music industry despite a stellar track record.

In her time at Boies Schiller, Davis has also leveraged her trial experience on major cases, particularly the firm’s recent victory on behalf of shareholders of Fannie Mae and Freddie Mac. The case centered around claims that the Federal Housing Finance Agency used amended stock purchase agreements to funnel profits to the Treasury just as the companies were returning to profitability in 2012, after recovering from the 2008 financial crisis. It became known as the Net Worth Sweep. Davis joined the litigation in the final few months of a decade-long case. After the first trial resulted in a hung jury, the team reshuffled their approach, with Davis giving the opening statement and the team winning a unanimous verdict in August 2023. Shareholders were awarded $612.4M as well as prejudgment interest estimated to be over $200M.

Lawdragon: What was it like coming to the Fannie and Freddie case almost in the 11th hour?

Kenya Davis: It was challenging and invigorating! But I had a lot of support to get up to speed from my teammates, especially our lead attorney Hamish Hume, my fellow partner Sam Kaplan, as well as our able co-counsel from Kessler Topaz, BLBG, Grant & Eisenhoffer and Cooper & Kirk. There were no shortcuts. Our challenge involved explaining to the jury how the economic conditions in the housing market changed from 2008 to 2012, and how our opponents knew that the conditions had changed and because of that wanted to take a different approach to the projected profitability. That required really understanding the accounting concept of deferred tax assets and the indicators of restored profitability.

As a trial attorney who wants to garner trust with the jury you have to shoot straight and give them the good, the bad, the ugly. Anything you perceive as a problem with your case needs to come out of your mouth first.

I’m thankful for the opportunity to have been part of the trial team that presented the case to the jury and part of the strategic steering committee for the case. That took a lot of trust, because that case was 10 years old by the time I arrived. I’m grateful that they recognized my unique skill set honed during my time investigating and trying cases in the government and allowed me to take on a pivotal role.

LD: As a former prosecutor, you’re known for your experience with juries. How did that come into play with this case?

KD: It’s important to remember that, just as with a judge, with a jury, you need to establish and maintain trust. You have to respect the fact that jurors are engaged in critical thinking and working hard to understand unfamiliar concepts for the benefit of the parties and for no gain of their own. Their trust in you is paramount. They have to know that you will tell them the truth about everything. The facts are the facts. There is no such thing as an insurmountable fact. I tried very challenging cases during my time as a prosecutor. Trials that involved difficult witnesses that no one liked or admired and even more difficult facts. The Fannie Mae, Freddie Mac trial involved large entities that received aid from the government and so there were people who despised the companies from a policy perspective and in turn despised their shareholders. As a trial attorney who wants to garner trust with the jury you have to shoot straight and give them the good, the bad, the ugly. You do not run from the unpopular opinion of the case, but instead you walk the jury through why you view those facts the way you do. Anything you perceive as a problem with your case needs to come out of your mouth first.

When I am teaching, I love to use those ambiguous images that look like two different things depending on how you view them. Much like those pictures, in a trial, we have to highlight certain features in the facts that allow the juror to see that the opponent has a viable perspective, but that perspective is the wrong one to have in this instance for a number of reasons. Through the lens of good faith and fair dealing, nothing about what FHFA and Treasury conspired to do with the Net Worth Sweep could be justice. So, the difference is made in the lens through which the jury is brought into the story. It is not lost on me that trials are unpredictable, but there is a science to it, and I respect our jury system as one of our fairest and most democratic forums in the world.

LD: Interesting. What other insights do you have for lawyers on working with a jury?

KD: Members of a jury, like society, like congress, are far apart from each other. People don't really agree on anything anymore. One way to get people to compromise is to find that common human thread. Then, you weave that thread into every part of the story, which is not the easiest thing to do when you’re talking about an implied covenant, the only theory of liability that Judge Lamberth would allow us to argue. Getting the jury to understand the concept within the context of their own individual lives – that takes skill. That takes art. That takes translation to build a bridge to the heart of the matter. I think that’s the principle that has remained the same, whether I’m in a corporate space or in a prison talking to the women incarcerated there. That sense of, "Is it fair? Is it right? Is it moral? Is there integrity there?" Those human concepts still, even in our very polarized society, ring true.

People ask, "How do you explain difficult legal concepts to regular people?" I don’t like to use that term. We're all regular people. Having a high level of humility about whatever subject you're teaching a jury is important. The Fannie/Freddie jury was going to be learning, in two weeks, what the lawyers, congressmen, agency heads and judges took 10 years to unravel.

That’s the principle that has remained the same, whether I’m in a corporate space or in a prison talking to the women incarcerated there. That sense of, 'Is it fair? Is it right? Is it moral? Is there integrity there?'

LD: What brought you to Boies Schiller?

KD: It’s the maverick nature of the practice here. My colleagues are so creative, brilliant, and their approach fits with the way I approach cases. I guess it is the debater in me that thrives here. We represent plaintiffs and defendants. It is a rare approach, but one that gives you undeniable skill and insight. A base level understanding of the state of the law, how the statutes are currently interpreted, is where many lawyers stop. Here that is where our analysis begins, and it will often go far beyond that. This is a place for people who see crisis differently and are really interested in complex, difficult problems that need solving. Being able to hone and refine that approach with David [Boies], Jonathan Schiller, the late Donald Flexner, and the types of lawyers that they were able to attract to this very novel way of practicing law is a privilege.

There’s a spirit of tenacity and bravery. I'm from the South, I'm a woman, I'm a woman of color, and my practice fits here. All of those identities put together make me very different than most of the people who practice law in this country. So, I needed to find a place that would embrace that difference, not just tolerate it. The managing partners, Sigrid McCawley, Matthew Schwartz, and Alan Vickery, understand the utility of my skill set not only for trials, but for the benefit of companies looking to assess risk and head off problems. I have been able to jump in and help tackle issues outside my core practice areas.

LD: Can you tell us a bit about your career path? Where did you go after law school?

KD: I started off under the tutelage of Mary Jo White and Lorna Schofield at Debevoise & Plimpton in New York. The case that took up the most time when I was there was representing women who had been sexually assaulted by correctional officers in New York State prisons. It was a civil rights class action. I could work on high-level securities cases while also working with these women in prison. Best of both worlds. I find the common thread is an ability to not be afraid of hard issues and to find the humanity in every story. When you do that, you can get across to very different constituencies.

LD: Were you assigned to that prisoner case, or did you put your hand up for it?

KD: I put my hand up for it. One of the things that was great about working at Debevoise, which is also great about being a partner at Boies Schiller, is that those kinds of cases are valued at the highest level. Excellence in serving the client, every client, is expected and pursued. I truly believe the notion of, “you do good, you do well.” So, if you are investing the time and energy in those humanitarian pursuits, in a way that will build your skills and tenacity, then those skills are going to translate over into cases like Fannie and Freddie.

LD: Where did that humanitarian impulse come from for you?

KD: My mother was a social worker. My grandmother was an Atlanta bus driver, head of the Atlanta Beautification Project, and known in the community for feeding people. They both believed that there is no one who doesn't deserve help. Human dignity is not something that you earn. Even in dealing with defendants as a prosecutor, I never thought of them as people who did not deserve proper representation, people who did not deserve dignity and respect.

LD: And you grew up in Atlanta?

KD: Atlanta, Georgia. I started competing in policy debate tournaments when I was 13 in summer programs at Emory University. That's where the Urban Debate Leagues started, with our director, Melissa Wade, and coaches from urban high schools, Betty Maddox and Dr. Moss. Atlanta public school students were given an opportunity to participate in policy debate and tackle very complex issues, at the middle school level. Policy debate is evidence-based and has one speed: fast. To compete one has to rise to the occasion. There was no watering it down for us, and it clearly worked: My high school debate partner, Ed Lee, is currently the Director of the Barkley Forum at Emory University, one of the most highly regarded collegiate debate teams in the country.

A large corporation with multiple entities attached, much like an unwieldy case in court, needs a throughline message. Something that workers on the factory floor and that the C-suite executives can get behind.

LD: How did you move from Debevoise into government work?

KD: I wanted to try cases, and at large law firms many cases settle. To get more trial work, a lot of litigators go to the U.S. Attorney's Office, and thankfully, my husband is from D.C., so we moved here from New York.

There was no shortage of trial work that needed to be done. What is unique about the U.S. Attorney's Office here in D.C. is that you try both federal and local cases. Whether you're in Superior Court or District Court, you're going to run into the same jury pool. These juries ponder national security cases and some of the largest antitrust matters alongside homicides and domestic violence matters. The juries in D.C. are highly educated. They are well-connected. You're going to have at least one lawyer on every jury; there's no avoiding it. They are not easily swayed. And the public defender service is the best in the world. It is the best training ground for a trial lawyer, you sink or swim extremely well.

LD: Now that you are back in private practice, tell me about the ESG work you're doing.

KD: I served as co-chair of the D.C. Human Trafficking Task Force when I worked in government, giving me deep experience with the issues involved in ensuring that companies have a supply chain that meets anti-trafficking regulatory standards. That is the first tier of my practice – what I’ve come here to do.

Our ESG practice is growing. Companies are looking closely at the issues from not only a risk, but a profit generating perspective. My message to companies has been, "Start with your values. Start with the things that make your company good at its core.” Because usually, if you're starting there, you're going to meet the international labor standards. You're going to meet the new standards for the Uyghur Forced Labor Prevention Act. You're going to meet the standards for the SEC labeling rules. It sounds simple and naïve, but a large corporation with multiple entities attached, much like an unwieldy case in court, needs a throughline message. Something that workers on the factory floor and that the C-suite executives can get behind. As a firm we help companies pursue these first steps or develop a strategy after a plan-altering event to address the problem and communicate to law enforcement or an agency or a group of plaintiffs or to the public at large that this company is set apart.

When scrutiny arises, the government is looking for what steps you've taken. What have you done to show that you're willing to do the work? That doesn't mean you have to fix issues by tomorrow. But companies need to be able to show their due diligence, and that's where we can help. We understand the differences in standards across the global marketplace and work to ensure that companies will be in compliance.

Clients who are willing to make that investment will also find they have better employee engagement. They have a story to tell, a true narrative for their customers. Because that's the other piece of this: Customers are paying attention to whether or not companies are following labor standards, and the bottom line can be affected by a poor perception of how workers both in the United States or abroad are treated.