District Court Denies Stay in Railroad Fuel Surcharge Antitrust Litigation

Transportation Update

Date: September 21, 2012


In a decision issued September 20, 2012, the United States District Court for the District of Columbia largely denied the railroad defendants' request for a stay of the fuel surcharge antitrust class action litigation. However, Judge Friedman did stay any requirement that notice be sent to members of the class.

The court's order also set the following schedule to govern the next several months of the proceeding:

  • October 15, 2012 - Plaintiffs' opening expert reports due.
  • December 21, 2012 - Defendants' rebuttal expert reports due.
  • February 1, 2013 - Plaintiffs' rebuttal expert reports due.
  • February 22, 2013 - All expert depositions to be completed.
  • April 8, 2013 - All Daubert and summary judgment motions due.
  • May 20, 2013 - All opposition briefs to Daubert and summary judgment motions due.
  • June 17, 2013 - All reply briefs in support of Daubert and summary judgment motions due.

The defendant railroads still have a right to seek a stay of the District Court proceedings at the United States Court of Appeals for the District of Columbia Circuit.

In addition, the denial of the railroads' stay request does not affect the ongoing proceedings in the D.C. Circuit Court of Appeals, in which the railroads have sought permission to appeal the District Court's class certification decision. The appeal request was referred to a merits panel on August 28 for briefing on the issue of whether the railroads should be granted the right to appeal and on the legal merits of the appeal. A briefing schedule was issued on August 31, 2012.

On September 19, the D.C. Circuit Court of Appeals issued an order suspending the briefing in the railroads' request for permission to appeal. The order was issued in response to a request by BNSF Railway Company (BNSF) to file a separate brief with the merits panel. BNSF asserted to the court that it would file its separate brief and reply brief on the schedule already established by the court and requested no adjustments. BNSF did, however, state that it does not believe it will have adequate time to defend its interest if it is required to join in a single brief with the other railroads.

This case continues to have far-reaching implications for rail shippers. The four major U.S. railroads (BNSF Railway Company, CSX Transportation, Inc., Norfolk Southern Railway Company and Union Pacific Railroad Company) have been accused by shippers of an alleged price-fixing conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. ? 1. Any company that shipped large volumes of goods by rail and paid fuel surcharges directly to one or more of the defendant railroads in the class period (July 1, 2003 to December 31, 2008) is potentially affected.