Crowell & Moring provides cross-disciplinary, full-service legal guidance, including regulatory counseling with respect to environmental, labor, product safety, and international trade issues; negotiation of vendor, union, employment, and government contracts; crisis management and public relations support; and dispute-resolution services to our railroad clients. Members of the firm's environmental, energy, intellectual property, international trade, labor and employment, product risk management, tax, torts, trade associations, and trade secrets teams regularly work together to provide end-to-end advice on virtually any issue that may arise.
As trial attorneys, we represent clients in state and federal courts across the country and before regulatory agencies such as the National Transportation Safety Board (NTSB) and the Federal Railroad Administration (FRA). Our transportation team includes a number of former federal and state prosecutors and trial attorneys who understand the objectives and tactics of law-enforcement and administrative officials, particularly in the current environment of "regulation through litigation." We have a strong bench in the area of product safety litigation and are well known for our highly effective antitrust practice.
Defending Class I Railroad Against Price-Fixing Claim
We represent CSX Transportation, Inc. as its lead trial counsel in a consolidated group of putative class actions filed by purchasers of rail freight transportation services. Plaintiffs allege that CSXT and the three other major U.S. freight railroads engaged in a conspiracy to fix fuel surcharge prices in violation of Section 1 of the Sherman Act. In the early stages of the case, the district court granted the defendant railroads' motion to dismiss the indirect purchaser plaintiffs' state law claims, and that ruling was affirmed on appeal. More recently, the railroads appealed the district court's certification of a class of direct purchasers to the D.C. Circuit, and prevailed. The district court's ruling certifying the class was vacated and remanded. This significant victory for CSXT and the other defendant railroads has been widely reported and commented on because of its importance to the developing law of antitrust class actions post Comcast. In re Rail Freight Fuel Surcharge Antitrust Litigation, MDL 1869, 1:07-mc-00489-PLF-JMF (D.D.C.).
Ohio Railroad Derailment Litigation
We obtained summary judgment in a case seeking $500 million for medical monitoring following a major train derailment and fire near Painesville, Ohio. Plaintiffs filed the first lawsuit only 24 hours after the derailment, asserting a class of persons exposed to contaminants, allegedly including dioxin, particulate matter, benzene and other substances, from the fire's smoke plume. We convinced the court to rule on summary judgment, prior to either a class certification hearing or a Daubert hearing, based on serious gaps in plaintiffs' expert evidence and theories. The court granted summary judgment on all asserted grounds, and the Sixth Circuit affirmed this ruling on appeal, agreeing with our argument that that plaintiffs' expert submissions amounted to only "a 'mere. . . scintilla' of evidence." Hirsch v. CSX Transp., Inc., 656 F.3d 359, 364 (6th Cir. 2011).
Fiber Optic Right-Of-Way Class Actions
We serve as national coordinating counsel for a Class I Freight Railroad in a series of class action lawsuits against railroads and telecommunications companies seeking damages as the result of the installation of fiber optic cable on railroad right-of-way. Corridor litigations have been filed in some 30 states.
Solvent and Benzene Class Action Litigation
We have defended a Class I freight railroad in a wide range of putative class actions in federal and state courts in Florida, Illinois, Michigan, West Virginia, Ohio and New Orleans. These cases range from mass environmental neighborhood suits to FELA occupational actions to rail yard tanker spill actions. In none of these cases has a class ever been certified against the Railroad, nor has the Railroad ever suffered an adverse verdict or judgment. Class efforts in New Orleans and Illinois involving alleged noise and contaminants from various rail activities were promptly abandoned by plaintiffs after aggressive removal and briefing by our defense team. West Virginia class efforts by plaintiffs were abandoned after the Railroad prevailed on motions to dismiss in the federal court. A Michigan attempt at a class action was settled after the federal court ruled that he would not certify the class sought. A Florida environmental toxic tort class litigation was dismissed on a threshold motion, with plaintiffs being offered a chance to re-plead. All were the subject of media attention.