Revised Procedural Schedules in Fuel Surcharge Antitrust Litigation

Transportation Update

Date: November 27, 2012


In a November 26, 2012 decision, the United States Court of Appeals for the D.C. Circuit granted an unopposed motion to modify the procedural schedule in the railroads' request for permission to appeal the decision by the District Court to certify the plaintiff class in the fuel surcharge antitrust litigation.

The new schedule at the Court of Appeals is:

  • 12/03/2012 - Initial joint brief for all petitioners and initial supplemental brief for BNSF
  • 01/03/2013 - Respondent (Class) brief due
  • 1/17/2013 - Reply brief for petitioners and supplemental reply brief for BNSF
  • 01/24/2013 - Deferred appendix due
  • 02/07/2013 - Final briefs due

As we previously reported, the United States District Court for the District of Columbia issued a modified schedule on November 6, 2012. That schedule is:

  • 10/15/2012 - Plaintiffs' opening expert reports were served on defendants
  • 01/21/2013 - Defendants' rebuttal expert reports due
  • 03/04/2013 - Plaintiffs' rebuttal expert reports due
  • 03/25/2013 - All expert depositions to be completed
  • 05/09/2013 - All Daubert and summary judgment motions due
  • 06/20/2013 - All opposition briefs to Daubert and summary judgment motions due
  • 07/18/2013 - All reply briefs in support of Daubert and summary judgment motions due

This case has potentially far-reaching implications for rail shippers. A class of shippers has alleged that the four major U.S. railroads (BNSF Railway Company, CSX Transportation, Inc., Norfolk Southern Railway Company and Union Pacific Railroad Company) engaged in a 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. Please contact Thompson Hine's Fuel Surcharge Team with any questions regarding this important litigation.