Appeals Court Affirms Denial of Fuel Surcharge Class Certification

Transportation Update

Date: August 16, 2019

On August 16, 2019, the United States Court of Appeals for the D.C. Circuit issued a decision that affirmed the District Court’s denial of class certification in the railroad fuel surcharge antitrust case. This lengthy litigation began over 12 years ago as a putative class action against the four major U.S. railroads – BNSF Railway Company, Union Pacific Railroad Company, CSX Transportation, Inc. and Norfolk Southern Railway Company – for allegedly conspiring to set rail fuel surcharges in violation of the federal Sherman Antitrust Act.

The District Court had denied class certification in a decision issued October 10, 2017, but the plaintiff class representatives appealed that decision and the District Court stayed its proceedings pending appeal to the D.C. Circuit. With that appeal now decided, the District Court is free to move forward with consideration of the merits of the claims of the remaining plaintiffs (i.e., the entities that were proposed as class representatives). However, the District Court’s 2018 stay decision requires the plaintiffs and defendants to submit a “status report and recommendation(s) concerning further proceedings” within 45 days of the eventual D.C. Circuit’s decision. At this point, it is unknown what the plaintiffs and defendants will recommend.

Based on the next action taken by the District Court, the recent D.C. Circuit’s decision could require affected rail shippers to take action to preserve their claims. Such claims could be substantial for many rail shippers given that the alleged conspiracy coincided with a dramatic increase in fuel prices during the proposed class period of July 1, 2003 through December 31, 2008. Any company that shipped large volumes of goods by rail and paid fuel surcharges directly to one or more of the defendant railroads in this class period is potentially affected.


Please contact Thompson Hine’s Fuel Surcharge team with any questions regarding this important litigation:

Karyn A. Booth

Sandra L. Brown

Daniel Ferrel McInnis

Jeff Moreno

Robert F. Ware

David A. Wilson

David E. Benz

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.