Overview

Based on interviews with clients and peers, our transportation group is nationally rated at the top of the profession in Chambers USA: America’s Leading Lawyers for Business for our representation of shippers in rail and motor carrier matters. We understand both the regulatory settings and the commercial complexities affecting domestic and multimodal international transportation of cargo. We provide a broad range of services and handle a variety of matters concerning commercial, regulatory, litigation, legislative and policy issues involving the transportation of goods by rail, truck, vessel, aircraft and pipeline. We also counsel clients on matters of homeland security and the transportation of hazardous materials as those issues continue to have an increasing impact on their businesses.

Additional Information

We are highly experienced in the negotiation of freight transportation-related contracts and assist clients in matters of regulatory compliance involving economic, safety and security requirements. We have litigated numerous transportation contract disputes and other transportation-related issues before state and federal courts, administrative agencies and arbitration panels. In addition, members of our Transportation group frequently assist our clients to present their transportation-related issues to individual members of Congress and to congressional committees.

Experience
Representative Experience
Rail Experience
  • Counseling clients regarding consolidation, which has reduced the number of major rail carriers from more than 40 to just seven, created rail duopolies in the eastern and western portions of the country, and increased both the number of locations captive to a single railroad and the distance over which those locations are captive.
  • Advising rail carriers regarding abandonment of thousands of miles of rail line in an attempt to rationalize capacity, while at the same time demand for rail transportation has been steadily growing. Today, this combination of fewer railroads, reduced capacity and increasing demand has enhanced railroad market power with consequences for both service and rates.
Motor Carrier Experience
  • Guiding clients in connection with motor carrier regulatory matters, including truckers, brokers and shippers, through a morass of regulatory, commercial and practical issues presented by an ever-changing legal climate.
  • Assisting clients with the challenges posed by substantial economic deregulation, continuing safety and security regulations, and evolving environmental standards that can significantly impact your business.
Hazardous Materials
  • Advising clients regarding congressional adoption of a complex web of laws and regulations involving the tender and transportation of hazardous materials across all modes of transportation. Regulation of hazardous materials transportation has continued to grow and evolve since the terrorist attacks of September 11, 2001, and failure to comply with regulations can result in substantial civil penalties.
  • Representing clients in hazmat enforcement and federal agency rulemaking proceedings.
Federal Agency Practice

Representing clients in a broad range of administrative and regulatory matters before the following government agencies:

  • Bureau of Customs and Border Protection (CBP)
  • Department of Homeland Security (DHS)
  • Department of Transportation (DOT)
  • Federal Aviation Administration (FAA)
  • Federal Maritime Commission (FMC)
  • Federal Motor Carrier Safety Administration (FMCSA)
  • Federal Railroad Administration (FRA)
  • National Highway Traffic Safety Administration (NHTSA)
  • Pipeline and Hazardous Materials Safety Administration (PHMSA)
  • Surface Transportation Board (STB)
  • Transportation Security Administration (TSA)
  • United States Coast Guard (USCG)
  • Contract negotiations, interpretations, and disputes
    • Advising a major auto producer in contract renegotiations with all seven Class I railroads.
    • Advising a major chemical and plastics company in multiple rail contract negotiations.
    • Advising a major petroleum company in a contract dispute and subsequent renegotiation with a shortline railroad.
    • Advising a major auto producer in a contract dispute over inadequate rail car supply.
    • Arbitrating the “gross inequity” and “economic hardship” clauses in a long-term rail contract to obtain rate reductions.
    • Litigating the applicability of a rail contract on behalf of a major utility.
    • Advising shippers on incorporation provisions in rail contracts including applicability to fuel surcharge and other accessorial charges.
    • Advising several electric utilities on contract interpretation disputes relating to force majeure and coal dust issues.
    • Advising multiple electric utilities, regulated and merchant, in the negotiation, interpretation and disputes, relating to domestic and international coal supply and transportation contracts.
    • Advising a major electric utility on rail derailment liability involving private rail cars and alleged latent defects.
  • Regulatory challenges to unreasonably high rail rates
    • Prosecuting the first rate cases under the STB’s new small rate case standards.
    • Filing the largest and most complex rate case under the STB’s large rate case standards.
    • Filing more large rate cases for non-coal shippers (i.e., chemicals and plastics) than any other law firm.
    • Litigating various large rate cases on behalf of electric utilities.
  • Regulatory rulemakings
    • Preparing comments and presenting testimony to the STB on behalf of a large coalition of trade associations, shippers and government interests on proposed standards for small rail rate cases.
    • Representing a coalition of trade associations in an appeal of the STB’s small rate case rules.
    • Testifying on behalf of two trade associations and three major chemical companies in an STB hearing on the common carrier obligation of railroads to transport hazardous materials.
    • Preparing comments on behalf of two major chemical companies to FRA and PHMSA on rail tank car safety standards.
    • Testifying on behalf of an electric utility in an STB hearing regarding “paper barriers” in railroad sale or lease agreements.
  • Rail car lease negotiations, interpretations, and disputes
    • Advising clients on rail car lease terms.
    • Representing clients in disputes over lease requirements for the condition of rail cars at the end of the lease term.
  • Rail construction, crossing and abandonment cases
    • Representing numerous shippers in STB proceedings to obtain authority to construct a rail line to a nearby railroad and to cross the line of another railroad.
    • Opposing railroad abandonment of more than 200 miles of track in northern Maine on behalf of a major forest products shipper.
    • Counseling a West Coast port, including strategy and rail line valuation, regarding acquisition of rail line through Offer of Financial Assistance process at the STB to preserve long-term future of rail connection between port and national rail system.
    • Filing an offer of financial assistance at the STB to enable a shipper to purchase a rail line proposed for abandonment.
    • Negotiating purchase of abandoned rail lines for trail use under the Rails-To-Trails Act.
    • Obtaining an STB order requiring existing railroad to sell its rail line under the STB’s feeder line statute.
  • Liability and cargo loss, damage and delay
    • Obtaining a damage award from a federal court for chronic service delays resulting from rail merger integration issues, and defending the award on appeal.
    • Representing trade associations and individual chemical companies in opposition to railroad attempts to shift liability for their own negligence in hazardous materials transportation to their customers.
  • State and local government representation
    • Advising a coalition of state and local government entities on the construction of a highway across a major rail yard.
    • Obtaining favorable decisions for a city government both in federal court and the STB on federal preemption issues related to the city’s condemnation of a utility and road easement across a rail line.
    • Representing a state port in the purchase and operation of a short line railroad.
    • Representing a coalition of county governments in a rail construction project to enhance economic development.
    • Assisted in obtaining federal appropriations for transportation projects.
  • Safety compliance and enforcement matters
    • Advising shippers who have purchased or constructed rail lines on FRA compliance matters.
    • Advising shippers on the scope of FRA jurisdiction over intraplant operations.
    • Preparing an FRA-compliant drug and alcohol testing policy for a shortline railroad.
  • Merger proceedings
    • Negotiating settlement agreements on behalf of major trade associations to protect against the anticompetitive effects of mergers.
    • Petitioning for merger conditions that would preserve or enhance competition for shippers.
    • Appealing STB merger decisions on behalf of multiple trade associations.
    • Obtaining contested 2-to-1 status and buildout preservation rights for two electric utilities.
Motor Carriers
  • Representing clients regarding compliance with motor carrier statutes and regulations
  • Advising shippers on the development of FMCSA regulatory compliance programs for private truck fleets involving operational safety and security matters.
  • Advising a shipper with one of the nation’s largest private truck fleets on federal and state regulatory requirements implicated by a proposed restructuring and centralization of its transportation and logistics functions.
  • Advising a shipper of bulk metals on compliance with FMCSA’s cargo securement regulations and the division of responsibility between carriers and shippers.
  • Advising shippers, brokers and carriers on the attainment of DOT and FMCSA operating authorities and licenses.
Regulatory Proceedings & Policy
  • Preparing comments in various DOT rulemaking proceedings on the hours of service for truck drivers, cargo securement and hazardous materials transportation, among other issues.
  • Representing national trade associations in STB proceedings to revoke antitrust immunity for motor carrier rate bureaus and commodity classifications bureaus.
  • Representing a shipper representative on the North American Committee on Surface Transportation, which negotiated and developed a North American Standard Through Bill of Lading for cross-border NAFTA motor carrier movements.
  • Negotiating the joint American Trucking Association/National Industrial Transportation League Model Truckload Contract on behalf of the League.
  • Negotiating the joint Transportation Intermediaries Association/National Industrial Transportation League Model Shipper/Broker Contract on behalf of the League.
  • Advising a major auto manufacturer on its motor carrier contract negotiations and disputes.
  • Drafting, reviewing, negotiating and interpreting agreements between shippers and motor carriers, broker agreements and third-party logistics agreements.
  • Negotiating and litigating cargo loss and damage claims.
Litigation Before Federal & State Courts
  • Representing a large trade association in federal appellate litigation involving the promulgation of the DOT’s Hours of Service Rules.
  • Representing shippers and brokers in double-payment liability disputes where the party that already has paid a carrier’s transportation charges to a third party is subsequently sued by the carrier, which did not receive payment from the third party.
  • Representing shippers in the highly charged negotiated rates cases before the ICC and STB, and in federal and state courts, including several cases before the United States Supreme Court.
Hazardous Materials Compliance & Enforcement
  • Advising shippers, motor carriers, NVOCCs and other intermediaries regarding PHMSA, FRA, USCG, FMCSA, FAA and TSA hazardous materials safety and security compliance.
  • Advising and defending shippers on PHMSA, FAA and FRA hazardous materials enforcement matters.
  • Advising major chemical and automotive companies of PHMSA registration requirements and FMCSA permitting requirements.
  • Assisting major chemical companies in obtaining special permits from PHMSA and the USCG.
  • Advising motor carrier regarding PHMSA registration and FMCSA permitting requirements.
  • Regulatory rulemakings and other proceedings.
  • Preparing comments and testimony on behalf of trade associations and shippers in STB proceedings involving the carriage of hazardous materials by rail.
  • Testifying on behalf of two trade associations and three major chemical companies in an STB hearing on the common carrier obligation of railroads to transport hazardous materials.
  • Preparing comments on behalf of two major chemical companies and a trade association to FRA and PHMSA on rail tank car safety standards.
  • Advising shippers and trade associations in PHMSA rulemaking on alternative routing of hazardous materials.