Fuel Surcharge Appeal Briefing Scheduled

Transportation Update

Date: September 07, 2012


As we reported on July 9, 2012, the four major Class I railroads - BNSF Railway Company, Union Pacific Railroad Company, CSX Transportation, Inc. and Norfolk Southern Railway Company - sought permission to appeal the United States District Court for the District of Columbia's June 21 order certifying a class action against the railroads 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.

While not explicitly granting the railroads' petition for leave to appeal, the United States Court of Appeals for the District of Columbia Circuit issued an order on August 28 referring the appeal to a merits panel for briefing on both the issue of whether the railroads should be granted the right to appeal and on the legal merits of the appeal. On August 31, the merits panel issued a scheduling order setting the following schedule for briefing:

  • Petitioners' Brief - October 15, 2012
  • Appendix - October 15, 2012
  • Respondents' Brief - November 14, 2012
  • Petitioners' Reply Brief - November 28, 2012

As we reported on August 10, the District Court has the following upcoming agenda in the In re Rail Freight Fuel Surcharge Antitrust Litigation:

  • September 6 - The plaintiffs and defendants shall meet and confer and file with the court a joint report concerning class notice details and a comparative proposed schedule or alternative schedules.
  • September 13 - Hearing on defendants' motion for a partial stay of proceedings pending disposition of the appeal and on motions filed by individual class members for access to the court record.

It is likely that on September 13 the District Court could decide that at least a temporary stay of proceedings is warranted, pending briefing in the Court of Appeals and decision on the appeal.