Court Denies Class Certification in Rail Freight Fuel Surcharge Antitrust Litigation

Transportation Update

Date: October 10, 2017

On October 10, 2017, United States District Court Judge Paul Friedman issued an order (Order) denying class certification in In re Rail Freight Fuel Surcharge Antitrust Litigation, the pending litigation against the four major Class I railroads – BNSF Railway Company, Union Pacific Railroad Company, CSX Transportation, Inc. and Norfolk Southern Railway Company – for recovery of damages suffered by shippers as a result of an alleged price-fixing conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C § 1.

In its Order, issued nearly 10 years after the cases were transferred to the court, the court held that the plaintiffs failed to establish the requirements to prosecute the case as a class action. The Order states that “while the documentary evidence is strong evidence of conspiracy and class wide injury,” the court found the plaintiffs’ damages regression model is flawed. The denial of class certification means that each plaintiff must establish its individual claim and prove damages based on its own shipments during the class period.

Importantly, the Order is not a ruling on the merits of the claims against the railroads, and individual claims may be asserted. However, the Order effectively restarts the running of the statute of limitations, which in most cases will require potential plaintiffs to assert their claims in a matter of days. Therefore, the Order has significant importance for all entities that purchased freight transportation services from the railroads during the class period (July 1, 2003 to December 31, 2008) and were subject to fuel surcharges.

Either the plaintiffs or railroads may appeal the Order, but an appeal requires a petition for permission to appeal to be filed with the U.S. Court of Appeals for the District of Columbia within 14 days of the date of the Order. An appeal of class certification denial, however, will not delay the restart of the statute of limitations that is effective as of October 10, 2017. Likewise, the fact that the opinion accompanying the Order is temporarily under seal will not delay the restart of the statute of limitations.

The restart of the clock on the statute of limitations means that a decision whether to pursue or forego any potential damages from the alleged conspiracy must be made immediately.

FOR MORE INFORMATION

For more information, please contact:

Karyn A. Booth
202.263.4108
Karyn.Booth@ThompsonHine.com

Sandra L. Brown
202.263.4101
Sandra.Brown@ThompsonHine.com

Thomas J. Collin
216.566.5509
Tom.Collin@ThompsonHine.com

Daniel F. McInnis
202.263.4110
Dan.McInnis@ThompsonHine.com

Jeffrey O. Moreno
202.263.4107
Jeff.Moreno@ThompsonHine.com

Jennifer S. Roach
216.566.5885
Jennifer.Roach@ThompsonHine.com

Robert F. Ware
216.566.5783
Rob.Ware@ThompsonHine.com

David A. Wilson
202.263.4161
David.Wilson@ThompsonHine.com

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