Transportation & Logistics

Broad Based Representation Throughout the Supply Chain

Benesch is one of the few law firms in the country that not only has a full service Transportation & Logistics Practice Group, but also represents entities all along the transportation continuum and in all modes of transportation – whether surface (truck or rail), water (ocean as well as inland waterways), or air (international and domestic).  We understand the business. We understand the thought processes, rationales, and business and legal motivations of other entities in the transportation chain with whom our clients have dealings. We are able to thus springboard from that expertise and extrapolate it into cutting edge, up-to-the-minute legal representation of our clients in transportation and logistics.  This cutting edge representation maximizes protections and advantages for our clients in that transportation continuum.  More specifically, we represent motor carriers, air carriers, rail carriers, and maritime carriers.  However, we also represent a broad array of “freight intermediaries,” e.g., transportation brokers, surface freight forwarders, air freight forwarders, ocean freight forwarders, and non-vessel operating common carriers. We represent warehousing entities up and down the transportation chain and numerous shippers and consignees.  This broad based expertise, and intricate and intensive working knowledge of all aspects, and all entities, in the transportation continuum, places Benesch in a unique position to serve its clients in an extraordinary way.

Contractual Experience

We also have specific experience in all types of contracts up and down the transportation continuum.  We regularly assist our clients with the drafting, negotiation, and revision of shipper-carrier contracts, broker-carrier contracts, broker-shipper contracts, warehouseman contracts, cross-docking arrangements, drayage contracts, customs brokerage contracts, port-terminal operational contracts, global services agreements, and the plethora of other transportation and logistics contracts in the industry.  The Group is also well experienced at preparing and negotiating warehouse operating and pick-&-pack agreements for major distribution center activities for both domestic and international shipments in addition to mainstream domestic motor carrier and rail related transportation and broker agreements. The group also has extensive experience in preparing and negotiating multimodal transportation contracts for shipments that never touch the United States and move point to point between countries throughout the world, particularly with respect to cargo with governing law provisions based upon treaties and conventions.

We also have experience in developing state of the art contractual transportation templates for shippers, carriers, and intermediaries for use with all modes of transportation. Each template is designed for regular use and specifically to protect the interests of the client. Some representative matters in this regard include:

• Joint venture and operating agreement for an automobile terminal and rail intermodal unloading facility – Edmonton, Canada
• Management Service Agreement with Taha el Roubi & Co., Khartoum, Sudan – management personnel provided for road construction project
• Agreement with GM/Toyota joint venture in Fremont, California for “just-in-time” uinbound parts delivery system
• Logistics service agreement for e-commerce fulfillment services
• Railcar Lease and Car Service Agreement for large fleet of railcars

Regulatory Compliance

Transportation remains an industry heavily regulated by federal, state, and local governments. In trucking, the Federal Motor Carrier Safety Regulations require carriers to establish and maintain safety compliance systems for drivers and vehicles. Hazardous materials transportation requirements and transportation security issues have moved front and center in this era of higher security.

Benesch's lawyers have experience with the regulations that directly affect how our clients runs their businesses. We can proactively assist our clients in developing a compliance program, as well as respond to compliance issues if they should occur. We help our clients navigate the maze of transportation and other governmental regulations through our thorough understanding of the underlying objectives of the regulatory structure.

We also have preeminent expertise in issues related to “carrier selection,” by which shippers, carriers, and/or brokers are brought into catastrophic injury lawsuits in efforts to locate a deep pocket.  (We have won several of these cases and also served as expert witnesses in several of these cases in which our clients have prevailed.).

We routinely conduct proactive mock USDOT safety audits and compliance reviews using the same methods as the FMCSA to determine the current state of a client’s compliance program. Our lawyers also defend and prepare motor carriers who have been selected for an actual audit or compliance review and develop corrective action plans to file for a safety rating upgrade for motor carriers with downgraded safety ratings. Likewise, we regularly assist our clients in improving their CSA scores, including DataQ appeals. In short, we develop all policies and documentation necessary for an effective safety compliance program. Other representative experience follows:

• Experience with STB & FMCSA in having assisted motor carriers, freight forwarders, and brokers in obtaining and maintaining FMCSA operating authority.
• Extensive experience in developing “carrier selection protocols” for our shipper and broker clients, so that those clients can prevent personal injury lawsuits based on “will-call” carrier selection.
• Experience with cross-border issues within the NAFTA countries, including bills of lading, contractual, freight charge and freight loss and damage issues, and regulatory issues.
• Experience with international transport regulatory issues and INCO terms.
• Advised companies regarding continuing compliance with ever changing regulatory issues specific to transportation providers.
• Experience with Caribbean Basin regulatory issues.
• Overweight, over length, and oversize issues.

International Freight Forwarder Representation

Benesch’s Transportation & Logistics Practice Group represents a wide variety of third-party logistics providers, including international freight forwarders. The firm helps these businesses find solutions to the challenges facing those operating in this dynamic industry - whether in the context of transportation by air or by ocean. Examples of our related experience are provided below:

• Representation of a Canadian 3PL which has freight forwarding operations in Canada, the U.S. and China, in navigating regulatory, governance and contractual issues.
• Representation of one of the world’s largest freight forwarders in developing a freight forwarding contract template to be used internationally for the provider’s largest global customers.
• Recently handled the purchase of an international freight forwarder by a private equity firm.
• Representation of a trucking company in its expansion into a global company by way of acquisition of an international air freight forwarder with operations in 45 countries. Representation included locating, analyzing, and transitioning all legal files related to cargo; managing cargo claims for subsidiary; and serving as outside general counsel to the newly-acquired company. Managed all cargo claims for subsidiary of international freight forwarder.
• Representation of an ocean freight forwarder in arranging for the international, multi-modal transportation of valuable freight from Brazil.
• Representation of a Canadian transportation broker in establishing operations in China as an ocean freight forwarder.
• Prevailed in jury trial in which we represented an international freight forwarder regarding a high dollar contractual dispute involving a multimodal, specialized heavy haul international shipment, from the U.S. to France, several overlapping liability regimes and European permitting issues.
• Representation of a U.S.-based shipping agency and global supply chain solutions provider with its application for two NVOCC licenses in China.
• Representation of a Chinese logistics and warehousing company in due diligence related to its potential purchase by a leading U.S. 3PL and international freight forwarding services provider.
• Currently representing a multibillion dollar U.S. freight transportation and logistics company in its NVOCC application in China.
• Currently defending an international freight forwarder against a cargo claim stemming from intermodal transportation.

Independent Contractors

Among other things, our team actively represents a wide variety of companies in various segments of the transportation industry located throughout the country in establishing, improving and managing effective independent contractor programs for companies headquartered throughout North America including California, Connecticut, Florida, Massachusetts, Michigan, New Jersey, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, and which operate nationwide and in Canada. These operations include:

• Regional Package/Parcel Delivery: Step vans, cargo vans and linehaul
• Regional and National Retail Delivery: Cargo vans, straight trucks (bobtails) and linehaul
• Regional Pharmaceutical Distribution: DC to pharmacy and/or physicians: cargo vans
• Regional and Same-Day Courier
• Truckload

Dry Van                             Flatbed                                           Bulk and Tank

Refrigerated                       Specialized and Rigging                Drayage

• “Lite” LTL

Specific representative examples of Benesch’s experience in the area of independent contractors include:

• Successfully defended several motor carriers at the National Labor Relations Board against attempts by the Teamsters to challenge the motor carriers' classification of owner-operators as independent contractors.
• Successfully defended several motor carriers in preserving their independent contractor worker classification status of their drivers in actions brought by the IRS, state agencies (workers compensation and employment compensation) both at the administrative level and in litigation.
• Successfully defended motor carriers in class action lawsuits brought by OOIDA and defeated class certification.

Client Counseling

We recognize that proactive, preventive maintenance is the most effective way of avoiding costly litigation.  To that end, we are very active in counseling clients on day-to-day employment issues as they arise.  This counseling takes many forms, such as reviewing disciplinary or discharge decisions; reviewing policies, programs and compensation plans for compliance with the Title VII, FMLA, ADA, FLSA, ADEA, O.R.C. § 4112 and the myriad of other employment laws; advising employers during reductions in force; providing supervisor training on issues such as employment-at-will, equal employment opportunity and workplace harassment; preparing employment agreements; and implementing alternative dispute resolution programs.  The counseling we provide is always with complete recognition that maximizing the client’s business position is as important a priority as avoiding litigation. Specific examples of the counseling we have provided include the following:

• Advised a multi-national retail jewelry chain regarding employment policy implementation in the areas of background checks, FMLA compliance, media relations, ADA compliance, telecommuting and workers’ compensation.
• Advised a multinational client on the consolidation of manufacturing plants in several states, together with the reduction in force of its national sales organization, which involved the implementation of layoffs and severance programs, as well as WARN compliance.
• Counseled a multinational office supply chain on the structuring and implementation of an alternative dispute resolution program for its employees.
• Counseled an international telecommunications company in connection with the downsizing of several plants and compliance with WARN and Older Worker Benefit Protection Act requirements.

Finding Creative Solutions

As times change and companies strive to meet growing demands to receive the right product at the right place and in good condition – immediately -  our scope of services has also evolved to accommodate the business realities to which our dynamic client base must respond.  Our transportation and logistics clients from across the country have broadened their industry scopes and entered innumerable new marketplaces, new niches, and new supply chain strategies.  Our clients have come to us with a myriad of amazingly creative ideas, pioneering business models and new hybridized enterprises.  We pride ourselves in maximizing the value of our seat at the table.  We specialize in contributing to the development of those ideas, those new concepts and those new niches, and helping our clients refine their strategies and structure their implementations with appropriate contractual documents, risk-appropriate transactional and regulatory compliance methods, and internal corporate documentation and guidance – to make those ideas soar.  We have helped our clients launch hybridized value-added warehousing concepts, created backhaul brokerage operations at and within private fleets, established brokerage operations within motor carriers, set up motor carrier and warehouse operations within brokerages, offered light assembly services from within warehouse operations, and many other creative ideas that have generated positive growth, and legally compliant growth, for our client base.

Active and Pervasive Involvement in Pertinent Industry Organizations

We believe that it is critical for legal counsel during this visionary time to be current and on the cutting edge of all industry, legal and regulatory developments.  To that effect, the attorneys in our Transportation & Logistics Group play active and integral roles in various industrywide organizations, helping us to stay on that cutting edge.  For instance, Marc Blubaugh is the general counsel for IANA and thus is familiar with nationwide multimodal issues on a daily and ongoing basis.  We are also members of the IWLA and speak at its legal seminar annually, and have drafted several template contracts for that organization.  We are also active members of the TIA (Transportation Intermediaries Association). Martha Payne is on the Education Committee for that organization.  Several of our lawyers have spoken at that organization’s annual conference and other CEO seminars for that group every year for at least the last decade.  Our attorneys have served on the food transport committees and regulatory committees of that organization.  Several of our attorneys are active members of the Conference of Freight Counsel and have attended and presented at its meetings decades.  That organization is the preeminent organization dealing with freight loss and damage across all modes, including freight intermediaries.  We actively participate, i.e. speaking, writing and attending conferences for numerous other industry groups that touch upon the freight intermediary/3PL space, including the Transportation Lawyers Association, the Truckload Carriers Association, the National Tank Truck Carriers, the Specialty Carriers & Rigging Association, the American Trucking Association (in which we hold several committee positions), the Transportation Loss Prevention & Security Association (one of our team was a founding board member), Transportation and Logistics Council, Air Forwarders Association, the National Customs Brokers and Freight Forward Association of America and many more.