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OVERVIEW

Government Litigation WHEN IT COUNTS

Litigation involving the government presents a unique set of challenges - often with stakes that reach far beyond the case at hand. The attorneys in Barnes & Thornburg's Government Litigation group have experience representing government agencies at virtually all levels, as well as private clients litigating against the government, in complex negotiations, investigations, mediations, administrative proceedings and federal and state litigation.

We have experience with the policy, public record and sovereignty issues that are not present in private litigation. Our attorneys are experienced in assisting with all types of representation, including:

  • Constitutional or statutory challenges to federal, state or local laws and regulations (including civil rights, voting rights, First Amendment and separation of powers issues)
  • Federal, state and local permits, licenses and entitlements
  • Municipal finance disputes and mandate litigation
  • Administrative and regulatory litigation
  • Regulatory takings and condemnations
  • Administrative investigations
  • Civil fraud litigation (procurement fraud, competitor proprietary data issues)
  • Zoning and land use
  • Municipal utilities
  • Annexations, mergers and municipal governance issues

Our attorneys have broad experience in trial and appellate courts and before federal, state and local administrative and regulatory agencies and represent clients in:

  • Government contract disputes (bid protests, contractor/subcontractor claims, terminations and defaults, alternative dispute resolution, regulatory and court representations and appeals)
  • MBE and WBE certification and compliance
  • Ethics and compliance issues (including hiring, gifts/gratuities, false certifications, anti-kickback and public corruption)
  • Government and organizational conflicts of interest
  • Open records and public disclosure issues
  • Audit obligations
  • Public construction projects
  • Public infrastructure
  • Economic development and energy savings requirements
  • Market examinations of insurance and financial institutions

We can tap in to extensive firm resources in environmental law, real estate, utilities, finance insolvency and restructuring, tax, health, antitrust, securities, government services and white collar crime to resolve matters effectively.

Litigation can have a lasting impact in light of the power that regulatory agencies have over businesses. Clients include local, state and federal government officials, government agencies, municipalities, school districts, public infrastructure development entities and private clients dealing with regulatory and other government issues.

Government litigation often operates on multiple fronts simultaneously in politically sensitive waters. We are well-positioned to assist clients in managing complex parallel proceedings and investigations.

Practice Leaders

Mark Crandley

Mark J. Crandley

Partner
Appeals and Critical Motions Co-Chair

Indianapolis

P 317-261-7924

F 317-231-7433

EXPERIENCE
  • A Barnes & Thornburg attorney represented a broker-dealer in connection with investigations conducted by SEC, NASD, NYSE and several state securities regulators in connection with multiple claims of churning and unsuitable and unauthorized trades against registered representative. No action was taken against broker-dealer.
  • A Barnes & Thornburg attorney represented a construction trade association in a case involving prevailing party attorney fees award in connection with a successful equal protection challenge to a construction set-aside statute. This case decided two issues of first impression in the Sixth Circuit. First, attorney fees awarded pursuant to 42 U.S.C. § 1983, accrue post judgment interest under 28 U.S.C. § 1981, and second, interest accrues from the date of judgment that the prevailing party is found to be unconditionally entitled to an award of attorney fees. Associated General Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482 (6th Cir. 2001). (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented a financial advisor in a state enforcement action brought against broker-dealer and several of its financial advisors. The State of Missouri voluntarily dismissed actions against the Firm’s client.
  • A Barnes & Thornburg attorney represented a public utility in the defense of a multi-million dollar dispute with municipality over termination of 35-year lease of electric distribution/transmission system. As part of representation, Mr. Brown guided client through state court and agency litigation while managing media relations in widely publicized dispute and successfully achieved settlement of claim once valued at over $100 million at de minimis cost to company.
  • A Barnes & Thornburg attorney represented an insurance company in a case involving alleged failure to register securities and failure to deliver prospectuses. The Illinois Securities Department voluntarily dismissed the claims.
  • A Barnes & Thornburg attorney successfully defended a self-directed IRA custodian in in an administrative enforcement action filed by the State Securities Commissioner, in which the client was alleged to be operating as an unregistered broker-dealer. The client's motion for summary judgment was granted and all claims were dismissed.
  • Appointed by the Attorney General of Illinois to serve as Special Assistant Attorney General to represent the Governor of the State of Illinois and other members of the Executive Branch in a tax payer constitutional challenge to health care reform in Caro v. Blagojevich, in the Circuit Court of Cook County, State of Illinois. Caro v. Blagojevich, No. 07-CH-34353 (Cir. Ct. of Cook County 2007).
  • Barnes & Thornburg attorneys obtained a favorable judgment on behalf of a municipal client against claims under the federal and state constitutions as well as the Indiana Home Rule Act in regard to an ordinance that required licenses for landlords. Peoples v. Town of Speedway, Ind., No. 1:06cv1324 (S.D. Ind., filed Sept. 6, 2006).
  • Barnes & Thornburg attorneys represented a financial advisor in a case brought by a state Securities Commissioner, alleging securities fraud. The claims were dismissed for failure to state a claim.
  • Barnes & Thornburg attorneys represented client state commission officers in defeating temporary restraining order pursuant to Younger abstention doctrine. Am. Legion - Post 330 v. Heath, No. 1:06cv390 (S.D. Ind., filed Mar. 8, 2006).
  • Barnes & Thornburg attorneys represented Rieth-Riley in Board of Commissioners' appeal of declaratory judgment that zoning ordinance was invalid and mandate that the board approve the developer's plan; court affirmed lower court's ruling. Hendricks County Bd. of Comm'rs v. Rieth-Riley Constr. Co., No. 32A05-0610-CV-585 (Ind. Ct. App. 2007).
  • Barnes & Thornburg attorneys represented the Indiana Association of County Commissioners as amicus counsel in a case where the Indiana Supreme Court reversed an unfavorable ruling by the Indiana Court of Appeals against the Fayette County Board of Commissioners. The county highway supervisor filed a lawsuit seeking judicial review of the county's decision to terminate his employment. Both the trial court and Court of Appeals found the county's termination decision was a quasi-judicial function, thereby permitting judicial review. If the decision stood, the practical effect would require judicial review of virtually every employment decision made by county commissioners regarding county employees. The Indiana Supreme Court reversed the Court of Appeals' ruling and found that Fayette County's employment decision was administrative and ministerial, not quasi-judicial, and therefore not subject to judicial review. Mark Crandley presented the oral argument on behalf of the IACC as amicus.
  • Barnes & Thornburg attorneys represented the Indiana Department of Transportation (INDOT) in a case prevailing against Monroe County, Indiana. The county enacted a "noise ordinance" aimed at an INDOT contractor working on the I-69 extension through Monroe County. The ordinance could have halted night work and resulted in approximately $10 million in additional costs to the state due to completion delays. After a hearing lasting several hours, the client secured a preliminary injunction against enforcement of the ordinance before Judge David Dreyer in Marion Superior Court. Following the court's decision, the Monroe County Commissioners amended their ordinance to exempt state agencies and their contractors, essentially mooting the INDOT lawsuit.
  • Barnes & Thornburg attorneys represented the Town of Fishers in a matter that involved the Town of Fishers enacting ordinances initiating a merger with a township that would create a new city. A group of residents challenged this merger in federal court under Section 1983 as a violation of their voting rights and their right to equal protection. The plaintiffs also alleged that the merger violated Indiana state law. After the federal district court dismissed the federal claims, the court certified the state law issues to the Indiana Supreme Court, which rejected the plaintiffs’ arguments and upheld the merger under Indiana law. 2011 U.S. Dist. LEXIS 44176.
  • Barnes & Thornburg attorneys successfully represented client Patriotic Veterans, Inc. in a case involving automatic political calls in Indiana in front of the U.S. District Court for the Southern District of Indiana. The court granted Patriotic Veterans' motion for a permanent injunction that would prohibit the State of Indiana from taking action against them. Patriotic Veterans, an Illinois-based nonprofit, educates voters on issues that interest veterans and the positions taken by candidates. The court decided that automatic political calls cannot be banned in Indiana due to federal preemption. The matter is currently pending before the Seventh Circuit.
  • Barnes & Thornburg represented the Town of Fishers in an action by several residents to enjoin the construction of a sports park. The plaintiffs challenged the park in the zoning process but, after receiving an adverse ruling, did not appeal the zoning decision. Instead, the plaintiffs sued in federal court under Section 1983, alleging various constitutional violations. The plaintiffs filed a motion for a preliminary injunction. The Town of Fishers filed an immediate motion to dismiss arguing that the federal court lacked subject matter jurisdiction because the plaintiffs had voluntarily failed to exhaust their state zoning appeal remedies. After an evidentiary hearing, the court denied the preliminary injunction and dismissed the case in its entirety. Peterson v. Town of Fishers, 2008 U.S. Dist. LEXIS 73260 (S.D. Ind. 2008).
  • Days before the November 2008 election, the plaintiff sought an injunction preventing an issue from going on the ballot regarding the removal of the local water utility from the jurisdiction of the Indiana Utility Regulatory Commission. The trial court denied the injunction and dismissed. Manigault v. St. Joseph Election Board et al.
  • In an issue of first impression, a unanimous Indiana Supreme Court affirmed the dismissal of an attempt to halt a multi-million dollar, environmentally friendly power plant project to be built by the City of Logansport. The plant involves private financing and will be governed by a public-private agreement between Logansport and a group of private backers. The court's opinion addressed an issue of first impression regarding the operation of Indiana's statutes governing how cities and towns may enter into these types of public-private agreements. Challengers to the project argued Logansport failed to take several steps they believed the statutes required of the City before entering into the agreement. The court's 5-0 opinion rejected those claims and affirmed the dismissal of the complaint, finding for the first time that Indiana's municipalities have broad power to enter into the type of agreement Logansport negotiated without the procedural limitations challengers sought to impose.
  • On behalf of construction trade association, a Barnes & Thornburg attorney successfully filed an equal protection constitutional challenge to 20-year-old construction racial set-aside statute. A permanent injunction issued by the District Court was affirmed by the United States Court of Appeals for the Sixth Circuit. Associated General Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730 (6th Cir. 2000). (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • On behalf of securities agent client, a Barnes & Thornburg attorney obtained voluntary dismissal by state securities division of its administrative complaint seeking to revocation of the agent's license.
  • SunCoke and Middletown prevailed in a citizen suit designed to enjoin construction of a state-of-the-art Coke Plant that would provide dozens of high paying jobs in Middletown Ohio and help secure hundreds of existing jobs at the AK Steel plant located there. The Southern District of Ohio dismissed the plaintiff’s (the City of Monroe) claims on abstention grounds reasoning that air permitting and air permit appeals were the jurisdiction of the appropriate Ohio administrative agencies not the Federal District Court. Monroe appealed this decision to the 6th Circuit Court of Appeals which ruled the appeal moot and remanded back to the District Court because SunCoke had obtained a major source air permit in the intervening months.



    The plaintifff then filed a motion for attorneys and expert fees and costs. The district court denied that motion and the Sixth Circuit affirmed. In addition to saving the client hundreds of thousands of dollars in fees and costs and preventing further costly discovery, the opinion establishes good law for industry clients defending Clean Air Act citizen suits. The decision reaffirms that permitting and permit appeals are the proper jurisdiction of state agencies who were delegated power by the USEPA under the Clean Air Act. The decision also stands for the proposition that plaintiff's should not be awarded fees and costs under the Clean Air Act without evidence they have prevailed on the merits in a case.
  • SunCoke and Middletown sought a Clean Air Act permit from the Ohio Environmental Protection Agency for the construction of a state-of-the-art Coke Plant that would provide dozens of high paying jobs in Middletown Ohio and help secure hundreds of existing jobs at the AK Steel plant located there. The plaintiffs then appealed that decision to an adminsitrative body that hears air permitting decisions. That body dismissed the permit appeal as moot and the plaintiffs appealed to the Ohio Court of Appeals. After oral argument on the issues, that Court affirmed the dismissal and agreed with our clients that the matter was moot.
  • The National Resource Defense Council (NRDC) challenged a Clean Air Act permit issued to our client, Central Indiana Ethanol Inc., on the grounds that an Indiana state statute and regulation violated the Act. Both the Office of Environmental Appeals and the trial court disagreed, holding that Indiana law allowed our client to receive its permit. The matter is now pending before the Indiana Supreme Court.
PROFESSIONALS

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