The capital-intensive rail industry faces numerous challenges as it struggles to compete with other forms of transport. Environmental concerns and regulations threaten the future of coal, its most important source of tonnage, while other regulations, including the Positive Train Control Mandate, will saddle operators with significant new costs. In short, the complexity of the regulations affecting this industry makes compliance a major concern.
We represent leading railroads, both Class I and short line, on a broad range of matters, including:
Corporate and Finance. In serving as counsel for railroads, we represent their multiple lines of business, including transportation, rail and intermodal terminal services, logistics services, procurement, technology, and finance. We advise them on a wide range of agreements, including rail and motor carrier transportation and services; transloading and commodity disposal; master terminal services; staffing and consulting; and terminal construction and development, including pipeline projects, sidetrack, and access. We also assist in the acquisition or disposition, by sale or lease, of locomotives and related goods and services, including fuel, mechanical components, and locomotive and rail-related technology and software, as well as in procurement of other required goods and services across the supply chain, including sales and purchases structured as 1031 like-kind exchanges. We also assist in procurement of maintenance services for locomotive fleets and engineering services related to crossings and signaling.
Additionally, we provide due diligence and other assistance related to rail company restructuring and divestitures. Finally, we represent equity investors, lenders, agents, lessees and borrowers in financing transactions for rail cars, including leveraged leases, synthetic leases, true leases, and loans in syndicated and single-investor structures, and in portfolio acquisitions and sales.
Real Estate. We regularly assist railroads in the acquisition, disposition, leasing and development of railroad right of way and related rail facilities. We also provide counsel in connection with the acquisition and development of significant Rail Intermodal projects and facilities. Our representation of railroads runs the gamut from negotiating purchase and sale and rail crossing agreements with individual land owners to the assemblage of multiple parcels involving coordination among numerous sellers, local governments and regulatory agencies. We also regularly assist railroads with the historical analysis of real property rights and have successfully represented railroads in disputes with state agencies over the extent of vested railroad rights in state-owned lands.
Litigation. We routinely represent our railroad clients in state, federal, regulatory, and arbitration forums both prosecuting and defending various commercial litigation matters including litigation related to federal preemption, real estate disputes, private and public crossing disputes, contract enforcement and interpretation, and cargo transportation claims and disputes. Our litigation team has extensive experience with interpretation and implementation of the various federal policies, regulations, and laws related to railroad operations, property management, and cargo transportation. We also assist clients in identifying and developing policies and strategies to avoid litigation.
Labor and Employment. We represent railroads in discrimination and harassment cases under federal and state laws. We advise regarding issues associated with mergers, acquisitions and layoffs; the drafting of employment agreements and related employment policies; as well as investigation of sexual harassment claims, preparation of affirmative action plans, and OFCCP audits. We also counsel on traditional labor issues under both the National Labor Relations Act and the Railway Labor Act, such as union campaigns, contract negotiations, labor disputes and defense of unfair labor practice charges.
Restructuring and Insolvency. We advise clients on creditors’ rights arising in connection with customer, shipper, or broker bankruptcy, receivership, or other form of insolvency proceeding. Restructuring and insolvency usually involves a range of issues, including complex vendor agreements, credit matters, preference and fraudulent transfer litigation, the assumption and rejection of contracts, claim issues, or the perfection of enforcement of common carrier liens on goods in transit.
Tort. We assist our clients with punitive damage claims, including support and oversight of trial counsel in cases that implicate corporate policies, training, and company-wide conduct. We coordinate discovery, defend apex depositions, and provide strategic leadership on legal defenses ranging from federal preemption to common law doctrines of vicarious liability.
Environmental Transactions. We have substantial experience in advising railroads on assessing and managing environmental liability in purchases, sales and leases of real estate, transactions, including transfers of legacy property with hazardous substance or petroleum contamination. We assist with the negotiation of master service agreements with environmental vendors and with the environmental aspects of rail-related business transactions, such as railroad tie procurement and disposal.
Regulatory and Compliance. We routinely represent our railroad clients in regulatory matters involving the Environmental Protection Agency, state environmental agencies, and the U.S. Army Corps of Engineers, including Superfund investigations and cleanups, wetlands issues, and other environmental matters. We also provide strategic advice and counsel regarding federal, state, and local environmental regulations and their impact on the rail business, including the transportation of hazardous materials or other regulated materials.
Environmental Litigation. We have substantial experience defending railroads in environmental enforcement actions, including citizen suits, as well as defending them in environmental tort and mass toxic tort actions arising from alleged soil and groundwater contamination. Our professionals have depth in guiding clients through all of the legal issues involved in moving a contaminated site through the regulatory cleanup process while also managing any threatened litigation or defending clients when there is actual litigation.