Litigation Accomplishments

Beveridge & Diamond, P.C., has a record of litigation success across a wide range of matters, including general commercial litigation, product protection and toxic tort, project development, defense of civil and criminal actions and citizen suits, challenges to agency action, and contaminated property actions.  As the results listed below show, we can litigate with the best and win through vigorous, highly skilled advocacy.  But we do not litigate just to litigate.  As the results also show, our focus is steadfastly on securing the outcome that best serves the business or personal interests of our client in each case.

Our various litigation experiences are categorized under the following:

• General Commercial Litigation
• Product Protection/Product Liability/Toxic Tort Actions
• Insurance Recovery Litigation
• Project Development Litigation
• Civil Enforcement Actions
• Criminal Enforcement Actions
• Challenges to Agency Rules
• Challenges to Permits/Beneficial Agency Actions
• Contaminated Property Actions
• Citizen Suits
• Cost Recovery/Contribution Actions
• Public Interest Actions

General Commercial Litigation

• After an evidentiary hearing, we secured a preliminary injunction against a county ordinance that blocked our clients' rights under state and federal law to use biosolids (sewage sludge) as fertilizer.  We successfully defended the preliminary injunction on appeal, and then secured a permanent injunction and a payment by the defendant county to our clients for attorneys fees for civil rights violations under 42 U.S.C. section 1983. O'Brien v. Appomattox County.

• The Firm secured on summary judgment a ruling that state law largely preempted local restrictions on land application of biosolids, leading to a settlement in which the defendant paid much of our clients' attorneys fees for civil rights violations under 42 U.S.C. section 1983.  Synagro v. Rush Township.

• We convinced the Federal District Court in Oregon to reverse its precedent and dismiss the tort case against our client because the plaintiffs’ claims were barred by the state statute of repose, even though Section 309 of CERCLA generally preempts state statutes of limitations.  We also persuaded the Court to dismiss all other claims against our client, including a fraud allegation, while permitting our clients’ contribution action against the plaintiffs under CERCLA Section 107 notwithstanding the limits on CERCLA Section 113 contribution actions imposed by the Supreme Court in Cooper Industries v. Aviall. McDonald, et al. v. Sunoco, et al.

• We secured dismissal with prejudice on federal preemption grounds for all ten airlines operating at a major regional airport of claims by property owners of nuisance, trespass, property damage and personal injury.  This result enabled the airlines to continue operations and avoid significant litigation costs, and establishing a favorable precedent against similar claims elsewhere in the future.  Haden v. Northwest Arkansas Regional Airport Authority, et al., No. CV-02-1218-2 (Benton Co. Cir. Ct. Ark.)

• We convinced a federal appeals court to uphold a district court ruling that our client was a foreign sovereign that was immune from suit in U.S. courts despite arguments that our client’s operation of a hydro power system caused direct economic effects in the U.S.  California v. NRG Energy, Inc.

• We won a $10 million jury verdict in a challenge to a health insurer's failure to pass on the benefit of discounts it negotiated with health care providers while pursuing subrogation claims against health plan beneficiaries.  Neal v. The Health Plan of the Upper Ohio Valley, Inc.

• We defeated an attempt to shut down our client’s quarry and processing operations based on claims that the quarry emissions contained asbestos fibers.  Township of Sparta v. Southdown, Inc., et al.

• We defeated an attempt to invalidate an agreement for solid waste disposal on the basis of a Dormant Commerce Clause challenge.  Village of Rockville Centre, et al. v. Town of Hempstead, et al.

• We preserved a $440 million, 20-year contract for the Town of Hempstead and avoided a claim for substantial damages in a breach of contract action.  In the Matter of the Arbitration between The Town of Brookhaven and The Town of Hempstead on Behalf of the Town of Hempstead Refuse Disposal District.

• We defeated a shareholders’ challenge under the Williams Act to our client’s acquisition of a public company.  Strassberg v. Hanania.

• We won a settlement, after discovery, for a British conglomerate and its American subsidiary in an action by former shareholders of the American company alleging that when they sold their stock to that company it failed to disclose material facts concerning its pending acquisition by the British conglomerate.  Schrott v. Metal Box, Ltd.

• We won a $2.75 million settlement for the City of Philadelphia in a dispute with a neighboring municipality for failure to pay under a waste water treatment contract.  City of Philadelphia v. Upper Darby Township.

• After two trials, we produced a favorable defense settlement in a class action by a minority shareholder alleging violations of the Securities and Exchange Commission’s proxy rules, and various state common law claims.  Wilson v. Great Am. Indus., Inc.

• After discovery, we settled favorably a suit by a former chief executive officer who had been discharged.  We were able to compel the settlement after an investigation by an outside accounting firm, working under our direction, revealed evidence that he had engaged in improper self-dealing.  Hanania v. Centuri, Inc.

• After discovery, we negotiated monetary and non-monetary relief for a public company that manufactured modular housing in a suit against a former executive alleging theft of trade secrets and other proprietary information.  Poloron Homes of Pa., Inc. v. Lifestyle Homes, Inc.

• We obtained a substantial monetary settlement for a widow and her four children in a wrongful death action following the beating death of the widow’s husband.  Dupree v. Gallaudet Univ.

• We obtained multi-million dollar settlement awards for West Virginia municipalities in breach of warranty, negligence and fraud actions against designers, builders, and equipment suppliers of municipal wastewater treatment facilities.  City of Morgantown v. Kelley, Gidley, Blair & Wolfe; City of Parkersburg v. Kelley, Gidley, Blair & Wolfe.

• We won the dismissal of an anti-trust suit by a pay-per-view telecaster challenging a college football television agreement formed by the American Broadcasting Company and the College Football Association.  Sports View Co. v. College Football Ass’n.

• We won voluntary dismissal of unfair trade suits against an international manufacturer by its distributors. Equistar Prods. Co. v. Risdon Q-Mist Corp.; Risdon Mfg. Co. v. Brother Int’l Corp.

• We successfully defended an anti-trust challenge to the legality of a contract awarding a single television network exclusive television broadcast rights to certain college football games.  Warner Amex, Inc. v. American Broadcasting Cos.

• We won an injunction against television broadcasts of college football games by WTBS in Atlanta because it breached an exclusive contract awarded to our client.  American Broadcasting Cos. v. NCAA.

• We negotiated the settlement for a nominal sum of a nationwide class action alleging price fixing in the retail sale of Cuisinart food processors.  In re Cuisinarts Anti-Trust Litig.

• We negotiated a nominal settlement for a prominent local business in a suit by a former employee alleging that his employment was terminated because of his race.  Bost v. District Cablevision Ltd. Partnership.

• We won a defendant’s jury verdict against a defamation claim in Gupta v. Scranton Times Ltd. Partnership.

• We won a defendant’s summary judgment against a defamation claim in Waicker v. Baltimore City Paper.

• We won a defendant’s summary judgment in a defamation and invasion of privacy  action.  Cochran v. Baltimore City Paper.

• We won dismissal in a defamation and invasion of privacy action.  Dunford v. Baltimore City Paper.

• On the eve of trial we negotiated a settlement for the defendant in a case involving alleged copyright infringement, a Lanham Act violation, and related common law claims.  Rowell v. Price Co.

• We obtained an order compelling three non-profit organizations to provide responses to discovery requests in a Clean Water Act case, and we obtained an order requiring the organizations to reimburse our client for the attorney’s fees it expended in prosecuting the motion.  American Canoe Ass’n Inc. v. District of Columbia Water & Sewer Auth.

• We secured a $4 million judgment for our clients whose $2 million investment was taken from them in a fraudulent securities transaction.  Our investigation demonstrated to the court that the defendant had committed similar wrongdoings in the United States and Europe. Gioia v. Bockweg, USDC SD Fla.  

Product Protection/Product Liability/Toxic Tort Actions

• The Firm led the successful defense of a wrongful death claim involving land application of biosolids (treated sewage sludge) that generated national publicity.  After aggressive use of the Daubert ruling that prohibits the use of faulty science in lawsuits, we secured a very favorable settlement that included a public statement by the plaintiffs that their scientific evidence did not demonstrate any link between biosolids and human health impacts.  Marshall v. Synagro.

• We defeated an attempt to stop the sale of an Avon product, and then, after a trial, we won a judgment for Avon on all counts.  Biopharmaceutics, Inc. v. Primavera Labs., Inc.

• We won the dismissal of a multi-million dollar products liability case alleging that the defendant manufacturers fraudulently misrepresented and failed to disclose to and warn plaintiffs of the risks associated with the electrical equipment defendants sold to plaintiffs.  Idaho Power Co. v. Monsanto.

• In a multi-district, multi-million dollar class action toxic tort and CERCLA case, we won summary judgment dismissing the case before answering and before the case was consolidated in plaintiffs’ selected forum.  McDermott Inc. v. Southdown, Inc.

• We won the dismissal of a nationwide class action by a group of water treatment facilities that alleged that our client’s herbicide had contaminated their water supplies.  Iberville Parish Waterworks, Dist. No. 3 v. Novartis Crop Protection, Inc.

• After discovery, we convinced plaintiffs to dismiss their nationwide class action alleging injury from occupational exposure to a widely used herbicide.  Sykes v. Novartis Crop Protection, Inc.

• We invalidated EPA’s decision to classify environmental tobacco smoke as a Group A (human) carcinogen.  Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA. After establishing that the EPA risk assessment involved was agency action subject to judicial review, we convinced the court to invalidate and rescind EPA’s risk assessment.

• After discovery, we forced a settlement of a toxic tort suit by Long Island homeowners who alleged that their drinking water wells had been contaminated by gasoline spilled from our client’s truck.  Bittner v. Valient Trucking Corp.

• We settled for a nominal sum, without discovery, a complaint under California Proposition 65 alleging improper labeling of industrial chemicals.  As You Sow v. Rho-Chem, Inc.

• After a trial, we won the dismissal of all claims by New York State, Suffolk County, New York, and the Suffolk County Water Authority alleging threats to human health from a herbicidal by-product that leached into the aquifer from which much of Long Island’s population gets its drinking water.  New York v. Fermenta ASC Corp.

• We won a settlement for over $10 million in an arbitration proceeding against a company that used our client’s testing data to obtain its FIFRA registration. [Matter name and parties confidential, American Arbitration Association.]

• After a lengthy arbitration proceeding we won several millions of dollars on a claim against another pesticide company that had used our client’s testing data to obtain a FIFRA registration.  In a settlement, we obtained several more millions of dollars to compensate our client for use of additional testing data to maintain the registration.  [Matter name and parties confidential, American Arbitration Association.]

• For a manufacturer of a hospital disinfectant, we convinced EPA to withdraw its stop-sale order and to scrap its earlier efficacy testing and to permit our client to continue marketing its product while an independent laboratory conducted additional testing.  Brulin Corp. v. EPA.

• We protected an experimental use permit EPA issued to Mobil for a new pesticide.  Rohm and Haas Co. v. EPA.  Then for Rhone-Poulenc, Mobil’s successor, we protected the registration EPA issued for that product.  Rohm and Haas Co. v. EPA.

• In a TSCA injunction action, we negotiated a unique consent decree that enabled our client to export PCB-contaminated electronics scrap for recovery of precious metals.  United States v. Boliden Metech, Inc.

• We won dismissal of CERCLA and RCRA claims based on the sale of chemicals.  These rulings enabled us to favorably settle the remainder of the case.  United States v. Vertac Chem. Corp.  These settlements enabled us to obtain dismissal of our client from alleged toxic tort claims asserted at the site.

• We won a verdict dismissing an asbestos wrongful death suit that had been brought by the estate of a former shipyard worker diagnosed with malignant mesothelioma, a virulent cancer of the lining of the lungs.  The jury found that the estate had not proved that the decedent was exposed to asbestos from our client’s products.  The verdict was affirmed on appeal.  Bauer v. Raymark Indus., Inc.

• We won defense verdicts in other asbestos wrongful death actions where the decedents had been diagnosed with bronchogenic carcinoma (lung cancer) and interstitial fibrosis (asbestosis).  We persuaded these juries that there were reasons other than asbestos exposure for the decedents’ medical conditions.  Martino v. National Gypsum; Walsh v. Armstrong World Indus., Inc.

• In another asbestos suit, we won a ruling during trial dismissing the case against our clients before it was submitted to the jury because the plaintiff had not presented admissible evidence that he was exposed to our clients’ products.  Nesselt v. U.S. Gypsum.

• In a product liability case alleging serious bodily injury in connection with a 78,000-pound excavator manufactured by our client, we won a ruling striking the plaintiff’s demand for a jury trial.  We then prevailed at trial with a decision that the excavator was not defectively designed.  Freiere v. Koehring Cranes Co.

Insurance Recovery Litigation

• After litigating an insurance coverage suit against numerous insurance companies, we recovered settlements from the carriers that reimbursed our client for its environmental liabilities relating to pulp, paper and charcoal manufacturing operations throughout the country.  Georgia Pacific Corp. v. Aetna Cas. & Sur. Co.

• We won substantial insurance settlements after litigating another complex environmental  coverage case seeking recovery for expenditures relating to our clients’ liabilities for diversified manufacturing operations.  HM Holdings Inc. v. Aetna Cas. & Sur. Co.

• In an environmental insurance coverage action involving liabilities for mining operations, we won an important ruling allowing our clients to pursue insurance recovery under valuable, decades-old comprehensive general liability insurance policies even though the policies could not be located.  This led to favorable settlements.  Gold Fields American Corp. v. Aetna Cas. & Sur. Co.

• In an insurance coverage action involving alleged toxic tort liabilities, we won a ruling ordering the carriers to reimburse our client for the costs and expenses of defending thousands of asbestos cases.  The Massachusetts Supreme Judicial Court affirmed and emphasized the breadth and importance of an insurance company’s duty to defend its policyholder, even when the underlying claims against its policyholder are groundless, false or fraudulent.  Simplex Technologies Inc. v. Liberty Mutual Ins. Co.

• We achieved a favorable settlement of an insurance company’s suit against our client after litigating a counterclaim for bad faith against the insurance company and related carriers.  Commerce & Indus. Ins. Co. v. Grinnell Corp.

• In a suit seeking insurance coverage for punitive damages, we won a favorable ruling that the litigation could proceed in the courts of a state whose law permitted insurance for punitive damage awards rather than in a state that does not allow such coverage.  HealthSouth Corp. v. St. Paul Fire and Marine Ins. Co.

• In a suit involving liabilities for chemical operations, we successfully compelled Lloyds of London and other London insurance market companies to disclose sensitive internal documents relating to their handling of environmental insurance coverage claims.  The carriers had argued that the documents were privileged and not subject to disclosure.  Hatco Corp. v. W.R. Grace & Co.

Project Development Litigation

• We secured summary judgment for the Maryland Department of Transportation against a challenge to the Intercounty Connector (“ICC”) highway the court called “among the most important, most controversial, most complex, and most discussed transportation and environmental projects undertaken in the Washington, D.C. metropolitan area.” Based on an administrative record of over 19,000 documents and 300,000 pages, the court upheld the agency’s compliance with the National Environmental Policy Act (“NEPA”), Section 4(f) of the Transportation Act, Section 404 of the Clean Water Act, Section 109(h) of the Federal-Aid Highway Act and the Clean Air Act. We were also instrumental in devising the strategy for the project’s Environmental Impact Statement after two failed NEPA processes in the 20 years before we were engaged. Audubon Naturalist Society, et al., v. U.S. Dep’t of Transportation, et al., (CV Nos. AW-06-3386; AW-07-1480 (November 8, 2007, D. Md.))

• We won the dismissal of a judicial review proceeding brought by neighboring landowners seeking to compel our client, a Long Island township, to prepare an environmental assessment and impact study in connection with the town's investigation of the feasibility of redeveloping a former solid waste disposal and transfer site as a public park.  The state court agreed with our argument on the merits that the town had not triggered any clear, non-discretionary duty to commence environmental review procedures, and that the extraordinary remedy of mandamus was therefore inappropriate.  Staiano et al. v. Town of Southampton.

• We successfully argued against the 22 environmental issues raised for adjudication by opponents of our client’s power generation facility.  The administrative law judge denied the opponents’ petitions for party status thereby canceling the environmental phase of the hearing.  In Re: Application of Ramapo Energy Limited Partnership for a Certificate of Environmental Compatibility and Public Need.

• We won a motion granting dismissal of an environmental justice lawsuit brought by opponents of our client’s power generation project therefore allowing our client to move forward with the project.  The arguments we used were subsequently used in a decision issued by the U.S. Court of Appeals (3rd Cir.) in another environmental justice suit.  Perry v. Commissioner NYSEC, et. al.

• We protected a permit issued to our client by the Corps of Engineers against allegations that the Corps violated NEPA and Section 404 of the Clean Water Act for a project in Charles County, Maryland.  Friends of Mount Aventine v. West.

• We successfully negotiated a settlement worth over $52 million on behalf of a county government in a major tax and lease dispute with commercial lessees of county-owned real property.  Rodolitz Associates v. Nassau Cty. Bd. of Supervisors, No. 20455-91, Rodolitz v. Nassau County Bd. of Supervisors.

• We won the dismissal of a complaint and established the principle that restructuring a loan secured by property that is habitat for endangered species is not an action governed by the Endangered Species Act.  Marin Audubon Soc’y v. FDIC.

• We won a settlement of several cases filed by citizens’ groups, the State of California and the federal government that permitted our client to develop 30 acres of land that contained scattered areas of wetlands on one site and maintain 26 acres of fill on another site, while capping its liability for wetlands mitigation required for alleged illegal fill at the sites.  Golden Gate Audubon Soc’y, Inc. v. United States Army Corps of Eng’rs.; California ex rel. Lungren v. West; Save San Francisco Bay Ass’n v. West.

• We successfully challenged EPA’s authority to issue orders where the Corps of Engineers has determined that there are no jurisdictional wetlands on our client’s property.  City of Oakland v. EPA.

• We established the principle that the federal government cannot claim jurisdiction over a wetland unless it proves that alteration of the wetland will affect interstate commerce.  In re The Hoffman Group, Inc.

• We won a decision against environmental plaintiffs and the State of California when they alleged that our client had not complied with the California Environmental Quality Act (“CEQA”).  Golden Gate Audubon Soc’y, Inc. v. Port of Oakland.

Civil Enforcement Actions

• We reduced the penalty demanded by EPA and the Department of Justice from nearly $2 million to $320,000, helped prepare an innovative SEP, and convinced EPA to drop its demand for several millions of dollars in further pollution controls. United States v. Southdown Inc.

• We defeated the New Jersey Department of Environmental Protection’s request for preliminary injunction against Southdown, Inc.’s operations at its quarry facilities based on an alleged PM-10 NAAQS violation, TSP permit emission limit violation, and egregious pattern of unpermitted fugitive emissions.  NJDEP v. Southdown, Inc.

• We convinced EPA to drop 13 counts in a 14-count complaint, and to settle for a $25,000 penalty and a SEP that would help hospitals reduce the use of medical devices containing mercury.  EPA v. Massachusetts Refusetech Inc.

• We avoided the highest penalty EPA sought at the time for NPDES permit violations.  United States v. Simpson Paper Co.

• We negotiated one of the first supplemental environmental projects (“SEPs”) in a settlement that allowed our client to conduct environmental awareness seminars in its industry.  United States v. Southdown, Inc.

• We helped secure a statute of limitations that is shorter than the one sought by EPA for enforcement of civil fines, penalties or forfeitures in administrative proceedings under the Toxic Substances Control Act.  3M Co. v. Browner.

 

• We convinced EPA to withdraw its complaint and demand for over $14 million in penalties.  In re General Motors Corp.

Criminal Enforcement Actions

• We won dismissal of all charges against three individuals arrested during a Washington, D.C. free speech demonstration, including expungement of arrest records.  Our successful defense spurred D.C. legislation reforming police arrest procedure and affirming the right of citizens to protest government policies.  District of Columbia v. Jane Doe, T-07139-02 (D.C. Super.)

• We represented the head of a federal agency in a Department of Justice inquiry into securities, ethics and conflict of interest allegations that ended in declination of all charges.

• In United States ex rel. D’Avino v. Sperry Corp., which involved a parallel criminal grand jury investigation and False Claims action initiated by a qui tam whistle blower concerning allegations of inflated cost estimates on Navy contracts, the prosecutors accepted a civil resolution and declined criminal prosecution.

• We represented an attorney in a money laundering investigation that resulted in no charges being brought.  The government alleged that he gave fraudulent advice to his bank client and that he fraudulently participated in the preparation of regulatory disclosure documents.  After government investigators seized the case files, the court granted our motion to hold the files under seal during the three-year investigation.  The court later ruled that the attorney’s files were improperly seized in violation of the attorney-client and work product privileges.  As a result of that ruling and on the basis of a lengthy written submission and oral presentation, the Department of Justice terminated the investigation.

• After a ten-week trial, we won the acquittal of an oil company accused of participating in a conspiracy to fix the retail price of gasoline.  The trade association defendant and several other retailers were convicted.  United States v. Sigma.

• We represented several officials of publicly-traded health care providers in Department of Justice health care fraud investigation and parallel Securities and Exchange Commission and malpractice proceedings.  Charges were declined against all clients.

• We represented a major aerospace company against allegations of defective pricing on government contracts, improper payments to consultants to obtain confidential competitor information and product substitution of component parts used in the construction of an important weapon in the nuclear defense capability.  The Department of Justice declined prosecution of all matters.

• We won the reversal of a criminal conviction in Virginia in Mery v. Commonwealth, representing the client on a court-appointed basis. 

• We represented a municipal wastewater treatment facility in a federal grand jury investigation that considered allegations of violations of the Clean Water Act.  The Department of Justice declined prosecution.

• We represented an engineering company and its President in a grand jury investigation for advice to a real estate company regarding dredging and filling an alleged wetland.  The Department of Justice declined prosecution after a lengthy investigation.

• We represented the Vice President of a printed circuit board company for alleged Clean Water Act violations.  The Department of Justice declined prosecution after completion of its investigation.

• We represented a municipality under investigation for alleged violations of the Endangered Species Act involving the taking of four tipton kangaroo rats.  The Department of Justice declined criminal prosecution and entered into a civil settlement.

• We represented an official with a manufacturing company under investigation for RCRA hazardous waste disposal violations.  Our client’s employer plead guilty.  The state declined prosecution of our client after a full investigation.

Challenges to Agency Rules

• In a landmark decision, we brought a successful rulemaking challenge that, for the first time, compelled EPA to use the best available science in setting health-based standards.  Chlorine Chemistry Council v. EPA.

• We defeated the aerospace MACT standard that required airline maintenance facilities to immediately place solvent laden rags in containers, even though the requirement disrupted airline maintenance operations.  We also challenged provisions that applied the aerospace requirements to non-aerospace operations at airports.  Because of that challenge, EPA issued regulations that adopted our client’s position.  Air Transp. Ass’n of America v. EPA.

• We defeated EPA’s “potential to emit” rule under Title V of the CAA.   This victory will give facilities greater opportunity to avoid burdensome permitting requirements.  Clean Air Implementation Project v. EPA.

• We convinced EPA to revise the benzene National Emission Standard for Hazardous Air Pollutants (“NESHAP”) in a way that allowed our clients a year to retrofit their facilities.  Conoco, Inc. v. EPA.

• In the seminal NESHAP case under the pre-1990 Clean Air Act amendments, we convinced the court that the “ample margin of safety” requirement of the old Section 112 of the CAA should be interpreted to require a mix of health and cost-based considerations.  NRDC v. EPA.

• We assisted the San Francisco Bay Area’s region-wide transportation planning agency in developing the first computer-modeled transportation “conformity” assessment procedures used in the United States and won judicial approval of those procedures.  The procedures were later used by the EPA in developing a federal transportation conformity rule now applicable in all federal ozone and carbon monoxide “non-attainment” areas nationwide.  Sierra Club v. Metropolitan Trans. Comm’n.

• We saved billions of dollars for a consortium of major industries by defeating an EPA rule that would have required increased treatment of conventional pollutants.  American Paper Inst. v. EPA.

• We convinced EPA to delete from a rulemaking discharge limitations for a compound of concern to our client.  Chemical Mfrs. Ass’n v. EPA.

• We had struck down the California Ocean Plan water quality standards because they had been promulgated in violation of the California Administrative Procedures Act.  Simpson Paper Co. v. State Water Resources Control Bd.

• We were the first law firm to successfully challenge a decision to list a waste as hazardous under RCRA.  American Mining Congress v. EPA.  We were also actively involved in the only other case that resulted in overturning a hazardous waste listing.  Dithiocarbamate Task Force v. EPA.

• We defeated RCRA rules classifying wastes as hazardous when those wastes have been mixed with or derived from wastes that EPA had listed as hazardous.  Shell Oil Co. v. EPA; see also, Mobil Oil Corp. v. EPA.

• We blocked EPA’s application of the hazardous waste characteristic test to a broad class of solid wastes, thereby shielding those wastes from costly regulatory requirements.  Edison Elec. Inst. v. EPA.

Challenges to Permits/Beneficial Agency Actions

• For the Pharmaceutical Research and Manufacturers Association, we supported EPA in defeating an environmental group’s theory regarding MACT emission limits that the group would have used to argue for unreasonably stringent standards across a wide range of industries.  Sierra Club v. EPA.

• For the U.S. Conference of Mayors, the National Governors Association, and others, we helped EPA defend its decision not to include material separation requirements in the Agency’s NSPS for municipal waste combustors.  New York v. Reilly.

• The court adopted our arguments as amicus and dismissed a NEPA challenge claiming that EPA had to prepare an Environmental Impact Statement (“EIS”) before it can delist a substance.  Horsehead Indus., Inc. v. EPA.

• We defeated an NPDES discharge permit that imposed water quality standards at the point of discharge rather than at the edge of an appropriate mixing zone.  Puerto Rico Sun Oil Co. v. EPA.

• We preserved an exclusion from EPA regulation for certain mining wastes.  Solite Corp. v. EPA.

• We helped preserve an EPA decision not to regulate stringently certain mining industry wastes.  Environmental Defense Fund v. EPA.

• We won the dismissal of a challenge to a hazardous waste delisting our client had obtained.  Horsehead Resource Dev. Co. v. EPA.

Contaminated Property Actions

• We convinced the Federal District Court in Oregon to reverse its precedent and dismiss the tort case against our client because the plaintiffs’ claims were barred by the state statute of repose, even though Section 309 of CERCLA generally preempts state statutes of limitations.  We also persuaded the Court to dismiss all other claims against our client, including a fraud allegation, while permitting our clients’ contribution action against the plaintiffs under CERCLA Section 107 notwithstanding the limits on CERCLA Section 113 contribution actions imposed by the Supreme Court in Cooper Industries v. Aviall. McDonald, et al. v. Sunoco, et al.

• During jury selection, we won settlement for the plaintiff of a case involving construction delay claims, property damage and economic damages from the discovery of petroleum contamination at a construction site.  607 14th Street Assoc. Ltd. Partnership v. Greycoat Hanover F St. Ltd. Partnership.

• We obtained the dismissal of Sunoco, Inc. (R&M) from an action seeking diminution of property value damages and indemnification for cleanup costs based on allegations that a plume of groundwater contamination migrated from Sunoco’s property.  Alaskan Oil, Inc. v. City of Syracuse Indus. Dev. Agency.

• We won a jury defense verdict in a $4 million action for fraud, misrepresentation, and breach of contract by a real estate development firm that alleged that undisclosed subsurface oil storage structures and associated contamination destroyed its development opportunity and put it out of business.  The Petra Group, Inc. v. Southern Pac.Transp. Co.

• We recovered a large percentage of the plaintiff’s remediation costs caused by the failure of a commercial tenant to remediate contamination and remove debris from leased premises.  Sun Co. (R&M) v. Mallinckrodt Group.

• We won dismissal of a complaint alleging that our landowner client was liable for the release of fuel from underground tanks owned and operated by an oil company tenant on the property.  Shatz v. John Hancock Ins.

• We won a defense jury verdict in a class action suit by residents of an apartment complex against a terminal that cleaned and maintained chemical trucks.  Redwing Carriers, Inc. v. Saraland Apartments, Ltd.

• We won dismissal of a complaint alleging that releases from a landfill to which our client allegedly transported waste caused plaintiff’s cancer.  In re Global Landfill.

• We negotiated favorable settlement of a suit claiming property and economic damage resulting from alleged underground storage tank leakage.  1620 K Street Assocs. Ltd. Partnership v. Kajima Dev. Corp.

• After defeating a motion to dismiss, we negotiated settlement of a case claiming property damage and lost profits caused by gasoline station operations.  DAB Assoc. v. BP Exploration & Oil, Inc.

• After moving to dismiss, we settled a suit alleging property and economic damages from gasoline station operations.  Sternburg v. Sun Co.

Citizen Suits

• Despite citizen group objections that the penalties were too low, the injunctive relief was not enough, and the asserted economic benefit from the alleged violations had not been recovered, we convinced a federal district court to dismiss a citizen suit because the consent decree we negotiated and had entered in state court was diligent prosecution that precluded the citizen suit under federal law.  Clean Air Council v. Sunoco, Inc.

• In NRDC v. Risdon Mfg., Inc., we resolved favorably one of the first citizen suits brought under the Clean Water Act.  The case broke ground on the use of a Special Master as mediator in private environmental enforcement actions.

• In NRDC v. Environmental Waste Resources, Inc., we resolved favorably this citizen suit alleging violations of discharge limitations.

• In NRDC v. City of New Haven, Conn., we resolved favorably two citizen enforcement actions targeting the City’s wastewater treatment plant.

• In Citizens for a Better Env’t v. City of New Bedford, Mass., we resolved favorably this major citizen enforcement action for alleged failure to comply with a consent decree obligation to construct a $200 million wastewater treatment facility.  Settlement reduced the cost of the facility by one half, secured funding from the Commonwealth for over 60% of the reduced cost, and included forgiveness of the state penalty, with only a minimal federal penalty assessment.

• We resolved favorably Don’t Waste Arizona, Inc. v. Parker, Ariz. in a settlement that yielded a small Supplemental Project, and minimal other expenditures for the town and its joint venturer, the Colorado River Indian Tribes.

• We successfully defended a permit issued by the New Hampshire Division of Air Resources against a citizen suit alleging that the permit was issued in violation of federal and state laws.  In re Wheelabrator Claremont Co.

• We successfully defended against a landmark citizen suit alleging unlawful disposal of incinerator ash.  The district court dismissed the case, and the appeals court affirmed.  Environmental Defense Fund v. Wheelabrator Technologies Inc.

• We defeated several lawsuits by citizen groups and government entities in numerous venues to help our client get a major glass manufacturing facility built.  First, we prevented an injunction in federal court that would have halted the construction. (Goodman v. Guardian Indus. Corp.)  Second, we defeated challenges to the emission credits necessary to construct (Atlantic States Legal Found. v. Pataki), and challenges to the sufficiency of the pollution controls on the plant. (Goodman v. N.Y. State Dept. of Envtl. Conservation and Guardian Indus. Corp.)  Finally, we negotiated a settlement with EPA and the citizen groups that caused the citizens to dismiss their petitions to EPA’s Environmental Appeals Board.

• We defeated a citizen suit that sought to stop construction of another glass plant by the same company mentioned above.  Sierra Club and R.C. Travis v. Larry J. Wilson and Allan E. Stokes.

Cost Recovery/Contribution Actions

• On behalf of a PRP group at a major Superfund Site, we won a ruling of liability on summary judgment that the defendant was a successor to a company that it had purchased and dissolved, and the court imposed a constructive trust of $2.8 million on all proceeds of the sale of the assets of the dissolved company.  Pfohl Brothers Landfill Site Steering Committee v. Allied Waste. 

• We defeated an effort to disqualify a PRP group's expert witness, who offered testimony on the hazardous substances in a waste stream without having tested the wastes or visited the Superfund Site.  Pfohl Brothers Landfill Site Steering Committee v. Browning-Ferris Industries, Inc.

• We won a summary judgment order rejecting a claim by the State of California that it was entitled to recover its oversight costs at a “State Superfund” site.  State of California v. BKHN Inc.

• We established the liability of the successor corporation of an investment banking firm that had underwritten and managed a defunct mining company during World War II .  County of Santa Clara v. Myers Indus., Inc.

• At the Pfohl Brothers Landfill Superfund Site near Buffalo, New York (estimated $40 million remediation), we increased the size of the Steering Committee from 9 to 23 companies through investigation, negotiation and litigation.  Pfohl Landfill Site Steering Comm. v. Pfohl Enters.  We also won several major findings of liability from the neutral Allocator.

• Also at the Pfohl Site, we secured rulings from the District Court (i) granting our client summary judgment on its CERCLA contribution claims based on a complex successor liability issue and (ii) defeating a Daubert challenge to our expert’s opinion on the presence of CERCLA hazardous substances in a PRP’s waste.  Pfohl Steering Committee v. BFI.

• We established the principle that an easement holder is not, without more, an owner or operator of a facility under CERCLA.  Long Beach Unified Sch. Dist. v. Godwin Living Trust.

• As common counsel to a settling PRP group, we sued and obtained settlements from over 70 non-participating PRPs and we negotiated and implemented settlements with federal and state authorities.  Berlin & Farro Participating Cos. v. Berlin.

• We obtained favorable settlements for Westinghouse Electric Company, Great American Industries and Clark-American in the Shore Realty Superfund case.  State v. Shore Realty Corp.

• We persuaded the government to reduce the scope of the “site” and to forego 50 percent of its past costs in United States v. Stanley Kessler Co.

• In a suit over the costs of cleaning up a landfill, we established our client’s right to indemnity from the landfill operator and its lack of responsibility for radioactive waste disposed of by a company in which our client was the majority shareholder.  As a result, we negotiated a favorable settlement through ADR.  Waste Management, Inc. v. Aerospace America, Inc.

Public Interest Actions

• We helped a citizen of the Democratic Republic of Congo, who had been imprisoned and tortured in that country for speaking publicly about human rights issues, obtain asylum in the U.S. by persuading the asylum office to take the unusual step of reconsidering its decision not to grant asylum, thereby avoiding a wait of a year or more to try the case.  Confidential Client

• We obtained $775,000 from the City of Manassas and the Manassas School Board, as well as extensive reform of their zoning inspection and student record procedures, on behalf of pro bono clients who alleged that the City and School Board had discriminated against Hispanic residents in violation of federal and state fair housing and privacy laws.  Equal Rights Center v. the City of Manassas, No. 1:07-cv-1037 (E.D. Va. 2007).

• For the Fair Housing Council of Greater Washington, we won a verdict against a local developer who breached an agreement to follow nondiscriminatory rental practices in accord with the federal fair housing and civil rights laws.  Fair Hous. Council of Greater Washington v. Landow.

• We won a remand for a group of parishioners whose suit against their former church for fraudulent fundraising was dismissed by the trial court.  Robert-Douglas v. Evangel Temple.

• For a U.S. Senate candidate, we joined several other candidates in winning the dismissal of a constitutional challenge to out-of-state campaign contributions to federal political campaigns.  Froelich v.  Federal Election Comm’n.

• We represented a class of migrant workers who picked apples in West Virginia and a legal services attorney in West Virginia in a case against apple growers challenging various practices, such as the retention of green cards of legal immigrant workers, which had the effect of keeping the workers in servitude during the picking season.  After extensive and bitterly-contested discovery, we settled the case on terms that achieved all of our clients’ objectives.  Dastino v. Porterfield Orchards, Inc.

 

• We persuaded plaintiff to dismiss an eviction notice against our client because it failed to follow the eviction procedures set forth in the D.C. Housing Code and the parties’ cooperative property agreement.  Champlain Court Coop. v. Carter.

• We represented a mentally retarded woman in a child custody suit filed by her mother for custody of her 18-month old child.  We persuaded the mother to abandon the suit.  Thomas v. Robinson.

• We represented a single mother in a suit for alleged breach of contract involving improvements to her house.  We persuaded plaintiff to settle its claim for a nominal amount.  Jamestown Aluminum Corp. v. Stalberg.