TRANSPORTATION

Case Studies

Helping Chicago’s public transit agencies implement an innovative fare payment system

Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002)
Thompson Coburn successfully represented the SCSPA before the United States Supreme Court. States and their instrumentalities are entitled to sovereign immunity in proceedings before federal administrative tribunals. A vessel operator filed a complaint at the Federal Maritime Commission against the SCSPA. The Administrative Law Judge dismissed the complaint on the basis of the state’s sovereign immunity reflected in the 11th Amendment to the U.S. Constitution. The Commission itself reversed. We petitioned for review by the U.S. Court of Appeals for the Fourth Circuit and secured a unanimous decision reversing the Commission. The Federal Maritime Commission, joined by the Solicitor General, filed a Petition for Certiorari, which was granted. We successfully argued that the principle of state sovereign immunity reflected in the 11th Amendment transcended its literal language to apply to proceedings before federal agencies and was not limited to cases filed in Article III courts. The decision, one of the most significant in perhaps the oldest line of Supreme Court cases, affirms the dual sovereignty inherent in our federal system of government.

Obtained an exemption for Insituform Technologies from the hours of service regulations for most of the client’s day-to-day activities. Our extensive efforts included direct meetings with the appropriate regulatory officers within the DOT. Insituform Technologies provides substantial maintenance and repair services to utility companies worldwide, with a particular emphasis on providing services to U.S. municipal entities. Given the nature and time sensitivity of the products used by the client, the utility-related work frequently requires the client’s drivers to operate commercial motor vehicles beyond the strict confines of the applicable hours of service regulations.

Represented a foreign-based shipping company in negotiating vessel construction contracts with major international shipyards in Korea, Japan and China.

Represented the Export-Import Bank of the United States in the guaranteed financing of two off-shore drilling rigs, each with values in excess of $100 million, for export to a Mexican company.

Represented a client in the $50 million sale of its vessel fleet, including 19 boats and 29 barges. Our attorneys provided advice and counsel to the company on admiralty, labor and employment, and regulatory issues.

In December 2006, our firm requested and obtained a Modified Certificate of Public Convenience and Necessity (MRC) from the Surface Transportation Board (STB) for a state port authority to operate on a line known as the Port Royal Railroad. Surrounding landowners petitioned for reconsideration of the MRC, arguing that they owned the fee interest in the right-of-way and that the STB lacked jurisdiction to issue the MRC because the line had been abandoned. We represented the port authority in its opposition to the landowners. The STB denied the landowners’ petition; the landowners again petitioned for reconsideration of the decision. In July 2008, we filed a notice of intent to terminate service on the line and a joint request for a notice of interim trail use (NITU) that would permit rail banking/interim trail use of the line under the National Trails System Act, 16 U.S.C. 1247(d). The landowners opposed the notice. In May 2009, the STB denied the landowners’ petition for reconsideration and granted the joint request for an NITU.

Led a coalition that successfully lobbied Congress in connection with the reform of Subpart F relating to the taxation of foreign-based company shipping income and have represented clients in the enactment of the alternate tonnage tax regime for U.S.-flagged vessels operating in international trade.

Filed a brief on behalf of Dallas Area Rapid Transit (DART) in the U.S. Supreme Court, opposing a Petition for a Writ of Certiorari filed by Amalgamated Transit Union Local No. 1338. In the brief, DART opposes Amalgamated Transit Union Local No. 1338’s request for a writ of certiorari to consider whether the Texas Supreme Court correctly held that Congress did not preempt, by implication, a Texas state governmental entity’s immunity from suit when Congress enacted the Urban Mass Transit Act of 1964, and in particular Section 13(c) of that Act, which conditions a state transit entity’s receipt of federal funds on the state transit entity entering into an agreement that seeks to preserve the state transit workers’ collective-bargaining rights. DART argues that the case did not warrant the Court’s certiorari review because the Texas Supreme Court’s decision aligns with the Court’s constitutional precedent and the reach of, and limits on, Congress’ constitutional authority.

Washington Metropolitan Area Transit Authority (WMATA) and other municipal transit systems nationwide faced billions of dollars of termination liabilities arising out of the credit freeze. WMATA and the other systems financed their acquisition of subway cars and buses with tax-advantaged deals known as SILOs (sale-in, lease-out) and LILOs (lease-in, lease-out) backed by AIG, Ambac and other sureties. The drop in the credit ratings of these sureties triggered technical defaults and extraordinary accelerated termination payment liabilities, in this case $43 million, that jeopardized the systems' continuing operations. Taking the lead nationwide, WMATA filed suit in the U.S. District Court in Washington, D.C. and prevailed in a temporary restraining order (TRO) proceeding to prevent the first of many of these transactions from unraveling. Following issuance of the TRO, an evidentiary hearing on a preliminary injunction was held. The court expressed serious concerns about the windfall recovery sought by the investor bank and urged the parties to resolve the dispute. Thompson Coburn negotiated resolution of the dispute, avoiding termination liability for WMATA.

Advised a chemical company with respect to an investigation by the Federal Aviation Administration (FAA), Security and Hazardous Material Division, arising from multiple shipments of hazardous materials in apparent noncompliance with the applicable regulations of the Pipeline and Hazardous Materials Safety Administration (PHMSA). We participated extensively in structuring and preparing an initial submission as well as supplemental submissions to the FAA. Despite the potential for hundreds of thousands of dollars in penalties, the FAA agreed, following review of the submissions, to resolve the matter with a Letter of Warning and to forego any civil penalties.

Aid companies in developing supply chain security programs in compliance with the guidelines of U.S. Customs and Border Protection.

Negotiated transportation, multimodal and distribution contracts that permit a major distributor to outsource its tracking, warehousing and distribution activities to service providers.