Transport: rail and road - litigation and regulation in United States

Gibson, Dunn & Crutcher LLP

The team at Gibson, Dunn & Crutcher LLP, is led by 'one of the best trial and appellate advocates in the US', Thomas Dupree Jr. Based in Washington DC, Dupree has a has a strong and impressive court record at all levels of federal court, including the Supreme Court. Over the past year, he has continued his representation of Union Pacific Railroad in challenging one of the largest Americans with Disabilities Act class actions, wherein more than 7,000 plaintiffs comprising current and former employees allege that certain of the railroad's policies discriminate against those with disabilities. Another name to note is Raymond Ludwiszewski, who has extensive experience in civil and criminal environmental enforcement actions and has represented automakers in landmark greenhouse gas regulatory challenges. Theodore Bourtrous Jr in Los Angeles is also recommended.

Practice head(s):

Thomas Dupree Jr

Testimonials

‘Thomas Dupree Jr is one of the best trial and appellate advocates in the US’

Key clients

Daimler/Mercedes-Benz USA

Fiat Chrysler

Uber Technologies

Association of Global Automakers

Union Pacific Railroad

Work highlights

  • Representing Union Pacific Railroad in challenging one of the largest Americans with Disabilities Act class actions, in which more than 7,000 plaintiffs argue the company’s medical policy, which bars individuals with conditions that make them vulnerable to sudden incapacitation from holding safety-sensitive jobs at the railroad, discriminates against persons with disabilities.
  • Representing Daimler and Mercedes-Benz USA in a putative nationwide class action alleging that the defendants misrepresented emissions characteristics of their diesel vehicles, causing plaintiffs to overpay for the vehicles.
  • Acted for Association of American Railroads in successfully persuading the Federal Railroad Administration to withdraw its proposed crew-size regulation, which would have mandated a minimum number of crew members on certain trains.
  • Represented Global Automakers before the DC Circuit in opposing the lawsuits that were filed to challenge the Environmental Protection Agency decision that the model year 2022-2025 greenhouse gas emission standards are no longer appropriate and should be adjusted.
  • Successfully represented Uber Technologies in a high profile and precedent setting case before the Ninth Circuit, which decertified a class of thousands of current and former drivers alleging they were misclassified as independent contractors.

Hogan Lovells US LLP

Hogan Lovells US LLP handles a full gamut of road and rail litigation, but is noted in particular for its breadth of expertise in automotive class actions and its comprehensive knowledge in the areas of safety and emissions, electric cars, autonomous vehicles, and data privacy. Latane Montague has over 20 years of experience in the areas of automotive safety and environmental regulation, having represented  leading car manufacturers, engine makers, railcars and equipment suppliers. The rail practice is headed by Kevin Sheys, a member of the firm's global regulatory group, who specializes in railroad projects, transactions and regulatory matters. Sheys has acted as counsel on over 20 commuter and light rail projects and state-sponsored intercity passenger rail improvement projects. Also recommended are Michael Kidney, a name to note for consumer class actions and commercial litigation, and New York-based Carl Chiappa and John Sullivan, who have expertise in franchise litigation. Senior associates Kathryn Lannon and Ryan Ford are recommended for environmental and safety regulation and automotive distribution, respectively. Named individuals are based in Washington DC unless otherwise stated.

Practice head(s):

Latane Montague, Kevin Sheys

Key clients

Railway Supply Institute

Attorney General of the State of North Dakota

Denver Regional Transit District

Alliance of Automobile Manufacturers

Ford Motor Company

Nissan Group

Work highlights

  • Worked with the Railway Supply Institute, in conjunction with the US and Canadian transportation officials to shape and develop the rules that now govern the multibillion-dollar crude-by-rail transport industry in North America.
  • Successfully represented Hyundai in securing the denial of class action certification in two cases related to alleged brake defects, and also established a precedent that is crucial to counterbalance several recent decisions that have answered similar issues in favor of the plaintiffs.
  • Assisting the Attorney General of the State of North Dakota in conjunction with the Attorney General for the State of Montana, in filing a petition with the United States Department of Transportation, Pipeline and Hazardous Materials Safety Administration (PHMSA) seeking an administrative determination that the State of Washington’s newly enacted law regarding the volatility of crude oil transported by rail is pre-empted by federal HazMat law.
  • Represented Hyundai Motor Company before the US Department of Justice and the US Environmental Protection Agency regarding its nationally precedent-setting Clean Air Act settlement commitment.
  • Represented Mazda Motors in litigation filed in the District of New Jersey attempting to shut down Mazda’s revamped dealer incentive program.

McGuireWoods LLP

Eric Bilik leads the complex litigation team at McGuireWoods LLP, has over 20 years of experience representing rail transportation clients in federal and state court litigation, arbitration, and administrative proceedings before the Surface Transportation Board. Bilik is based in the firm's Jacksonville office alongside real estate expert Christopher Thanner, who has experience of real estate litigation involving rail facilities and railroad rights-of-way. Patrick Dover is a name to note for litigation concerning federal preemption under ICCTA and FRSA, nuisance, and tort claims involving rail transportation facilities and operations. Brian Jackson co-heads the transportation industry group and has extensive court room experience in a huge variety of transportation-related litigation, including personal injury defense, and uninsured and under-insured motorist coverage. Ashley Winsky left the practice in March 2019.

Practice head(s):

Eric Bilik, Brian Jackson

Other key lawyers:

Christopher Thanner; Patrick Dover

Dykema Gossett PLLC

Best known for its strong reputation and depth of experience in the automotive industry, Dykema Gossett PLLC is among the go-to advisors for automotive OEMs and automotive industry suppliers in a variety of bet-the-company lawsuits, including class actions, product liability and toxic torts, and appeals. Los Angeles-based Dommond Lonnie heads the automotive group, and stands out for his experience litigation cases relating to crashworthiness, tires and suspension, airbags, brakes and fuel systems, among other auto-part cases and liability lawsuits. Another contact in LA is Derek Whitefield, who specializes in product liability defense work, particularly regarding automotive crash safety. Contacts outside of Los Angeles include Michael Carey in Minneapolis and Brian Smith in Bloomfield Hills.

Practice head(s):

Dommond Lonnie

Other key lawyers:

Derek Whitefileld, Michael Carey; Brian Smith; Tamara Bush

Testimonials

‘Dykema is dedicated to automotive practice. It is a core competency and not just a “check box” among other disciplines. This expertise to the unique industry has been extremely valuable across our Company’s footprint.’

Key clients

FCA US

Ford Motor Company

Kia Motors America

Kia Motors Corp.

Toyota Motor Sales, USA

Work highlights

  • Successfully represented Kia Motors America and Kia Motors Corp. in its Ninth Circuit US Court of Appeals which threw out a nationwide class-action settlement claiming that fuel efficiency estimates in advertisements and car window stickers for certain vehicle models were overstated.
  • Lead counsel to FCA US in connection with economic loss class actions and product liability cases relating to the monostable-style electronic shift selector in 2012-2014 Dodge Chargers and Chrysler 300s and 2014-2015 Jeep Grand Cherokees.
  • Successfully obtained dismissals for Toyota Motor Sales, USA and related companies in a product liability/personal injury lawsuit pending in the USDC for the Southern District of California.

King & Spalding LLP

King & Spalding LLP has a strong reputation for emissions cases, and is regularly involved in the most significant disputes in this space. Recent examples of this have included its continued representation of Fiat Chrysler and VW in proceedings relating to emissions of diesel-powered vehicles manufactured by the companies. The automotive and transport group is jointly led by Jackie Glassman and environmental specialist Granta Nakayama. Glassman is recognized for her knowledge of regulatory and policy matters in the automotive space, particularly issues concerning safety responsibilities and fuel efficiency initiatives. Other names to note are John Hooper in New York, an expert in product liability litigation; Ilana Saltzbart, who focuses on environmental investigations or enforcement actions; and Susan Clare in Atlanta, who has represented automakers in high-exposure product liability and mass tort cases. All attorneys are based in Washington DC unless stated.

Practice head(s):

Jackie Glassman; Granta Nakayama

Key clients

Toyota Motor Sales and Toyota Motor Company

Volkswagen

Kia Motors America

Ford Motor Company

Porsche and Porsche Cars North America

General Motors

UPS

Work highlights

  • Representing FCA US and Fiat Chrysler Automobiles in connection with the US Environmental Protection Agency, California Air Resources Board, Department of Justice and California Attorney General investigations related to emissions from these vehicles.
  • Acting for Toyota in product liability litigation in several products liability and class action cases pending in various courts throughout the US.  
  • Representing Volkswagen in regulatory investigations and litigation involving 2.0-liter and 3.0-liter diesel engine powered vehicles.
  • Continuing to advise Kia Motors America on claims by the US Government that Kia and Hyundai overstated the fuel economy of their vehicles, and on issues related to Clean Air Act compliance.
  • US regional counsel for Daimler/Mercedes-Benz USA regarding all safety regulatory matters, which includes the Takata airbag recall.

Mayer Brown

Mayer Brown's Evan Tager has a track record in litigating claims against railroads, such as workplace injuries and derailments. A contact for regulatory work is senior counsel Adrian Steel, who has represented clients before state and federal transportation agencies, including the Surface Transportation Board.

Baker & Hostetler LLP

Baker & Hostetler LLP boats an impressive client base of leading auto manufacturers including Volvo Trucks, Honda, Ford Motor Company and Hyundai, among others. David Jarrett chairs the US-wide distribution and franchise practice in the Houston office. Jarrett advises manufacturers on the management of their retail distribution networks and compliance with the Federal Motor Vehicle Safety Standards. He also advises commercial motor vehicle carriers on compliance with the Federal Motor Carrier Safety Act. Billy Donley is a contact on the litigation front; he focuses on franchise litigation involving motor vehicle manufacturers. Also recommended are litigators Keith Russell, and Columbus, Ohio-based Elizabeth McNellie, both of whom are recognized for their expertise in auto franchising and distribution.

Practice head(s):

David Jarrett

Other key lawyers:

Keith Russell; Billy Donely; Elizabeth McNellie

Nelson Mullins Riley & Scarborough LLP

Steven McKelvey leads the automotive practice at Nelson Mullins Riley & Scarborough LLP, which acts for clients in the establishment of new dealership locations, licensing deals and ownership transfers, warranty reimbursements and other manufacturer issues related to dealers, distributors and state and federal regulatory bodies. McKelvey is based in Columbus alongside litigator Keith Hutto, who has developed an excellent reputation in disputes related to dealership and franchise terminations, warranty reimbursement demands and allocation challenges. Other key litigators include Richard Otera in Los Angeles, Mark Clouatre in Denver and Andy Bertron in Tallahassee.

Practice head(s):

Steven McKelvey

Testimonials

‘Steve McKelvey is a rock star. He is always available and has extremely deep knowledge of the auto industry. His advice is strategic, thoughtful and practical.’

Key clients

Fiat Chrysler Automobiles

General Motors

Honda

Hyundai

Isuzu Trucks

McLaren

Nissan

Work highlights

  • Represented a group of car companies including Hyundai, Mitsubishi Motors, Toyota Motor and Volkswagen Group in a dispute in relation to the demise of a large car dealership chain in California.
  • Successfully represented Fiat Chrysler Automobiles in an appeal by four Jeep dealerships of the Connecticut DMV’s decision to allow a new Jeep dealership.
  • Represented Nissan North America before the Georgia Court of Appeals, in a dispute regarding Nissan’s exercise of a contractual and statutory right of first refusal in a proposed sale of a Nissan dealership in Georgia.

Steptoe & Johnson LLP

Steptoe & Johnson LLP is best known for representing rail carriers in complex commercial disputes and preemption matters in federal and state courts, and in arbitration proceedings. Washington DC-based Linda Stein heads the rail department, and has extensive experience in litigation and regulatory proceedings involving issues such as rail rate reasonableness and environmental impacts under the National Environmental Policy Act. Other contacts in Washington DC are Peter Denton and Tony LaRocca, who are recognized for their experience of litigation, competitive access issues and regulatory implications of M&A transactions involving rail carriers and railroad property.

Practice head(s):

Linda Stein

Other key lawyers:

Peter Denton; Tony LaRocca

Key clients

BNSF Railway

Virgin Trains

Vulcan Materials Corp

Brookfield Asset Management

RailUSA

Florida Gulf & Atlantic Railroad

Association of American Railroads

Work highlights

  • Assisting BNSF Railway in implementing BNSF’s rights to access shippers in Lake Charles, Louisiana via a rail line owned jointly by the Union Pacific Railroad Company and the Kansas City Southern Railway Company.
  • Advising Brookfield Asset Management and GIC on rail regulatory issues related to their acquisition of Genesee & Wyoming a public short line railroad holding company.
  • Advising RailUSA, an independent freight railroad and rail services holding company, and its wholly-owned subsidiary Florida Gulf & Atlantic Railroad, on the acquisition of CSX Transportation’s 430-mile Florida Panhandle rail line.
  • Representing BNSF Railway in a contractual dispute with Panhandle Northern Railroad, a short line rail carrier operating the Borger Line running from Panhandle, Texas to Borger, Texas.

Thompson Hine LLP

Thompson Hine LLP acts for shippers, intermediaries, and carriers in a wide variety of motor carrier and rail transport matters, including regulatory rulemaking proceedings before Department of Transportation, and other federal agencies. Washington DC-based practice head Karyn Booth specializes in railroad safety proceedings before the Federal Railroad Administration, and also advises on railroad contracts and tariffs. Sandra Brown stands out for her experience working with bulk commodity shippers and other entities that use transportation services.

Practice head(s):

Karyn Booth

Other key lawyers:

Sandra Brown

Key clients

Ameren Corporation

American Chemistry Council

American Forest & Paper Association

American Railcar Industries

Corn Refiners Association

Costco Wholesale Corporation

Hasbro

Work highlights

  • Represented ARI Railcar Services in a dispute with Norfolk Southern Railway Company regarding Norfolk Southern’s assessment of rail car storage charges against ARI for inbound rail cars to ARI’s repair facility in Tennille, Georgia.
  • Acted for NRG Power Marketing in a commercial dispute with a railcar lessor.