Benjamin J. Horwich

Appellate – Financial Services

Wells Fargo Bank NA in the California Supreme Court, in a case establishing that lenders and loan services are not obligated to protect a borrower’s economic interests when processing a mortgage modification application.

Wells Fargo in resolving class action litigation after the city attorney for Los Angeles filed suit against Wells Fargo alleging that bankers were improperly opening accounts for customers. Plaintiffs alleged damages upwards of $1 billion, however the matter was settled for $142 million.

Wells Fargo Bank as lead counsel in a consumer class action and various other matters relating to allegedly improper sales practices.

Regulatory, Tax and Takings Litigation

Rail Transportation

BNSF Railway in obtaining a settlement with Navajo Transitional Energy Company’s Spring Creek Mine shortly after MTO briefed a Fifth Circuit appeal of an adverse decision from the Surface Transportation Board, which had ordered the carrier to handle 23 trains per month from the mine and meet a 4.2-million-ton annual quota. The matter was one of the most significant test cases involving the common carrier obligation in decades.

BNSF Railway in a Ninth Circuit victory establishing that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts local county permitting processes in the Columbia Gorge, despite the fact that such permitting occurs pursuant to an interstate compact.

A railroad trade association in representation before the Surface Transportation Board in proceedings related to reciprocal switching.

Property Tax Authority

AT&T, T-Mobile, Lumen Technologies and affiliates in seeking refunds of property taxes paid in California at rates higher than those applicable to locally assessed taxpayers. The utilities contend that California counties’ disparate taxation of utility property violates Article XIII, Section 19 of the California Constitution, which requires that utility property be taxed “to the same extent and in the same manner as other property.”

BNSF Railway in the successful appeal of BNSF Railway Co. v. County of Alameda et al. and BNSF Railway Co. v. County of San Diego et al., resulting in settlement and agreement to release tens of millions of dollars in tax refunds and credits to BNSF.

BNSF Railway in defeating the state of Oregon’s attempt to enormously increase BNSF Railway’s property tax burden, on the grounds that federal law prohibiting discriminatory taxation of railroads.

Water Rights

The six Irrigation Districts of the US Bureau of Reclamation Gila Project, in Yuma County, Arizona, regarding their continued rights to irrigation water taken from the Colorado River, which irrigates land that provides 90% of the nation’s winter vegetables. The districts’ water rights are competing with users in seven states and Mexico, including Indian Tribes, cities and other growers/ranchers regulated by the US Department of Interior and the Arizona Department of Water Resources.

Fifth Amendment – Takings and Just Compensation

Farmers and landowners in securing a major appellate victory in their effort to secure just compensation under the Fifth Amendment for the taking of their farmlands by recurring flooding along the Missouri River, which was caused by massive river alterations made by the U.S. Army Corps of Engineers.

Assistant to the Solicitor General, U.S. Department of Justice (2009-2014)

As an attorney for the United States, Ben filed nearly 200 briefs in the U.S. Supreme Court, and he advised the Solicitor General on more than 200 other matters pending in lower courts.

During his tenure in Washington, D.C., Ben had significant responsibility for almost every competition law matter requiring action by the Solicitor General. He worked closely with the Food and Drug Administration on matters implicating patent law, competition law, regulatory practice, tort law and federal preemption, and spanning nearly every category of product regulated by that agency. Ben also argued, briefed, or supervised the government’s participation in several key Supreme Court and lower court cases in rapidly evolving areas of class action practice and personal jurisdiction law.