Almost one year to the day after it was last postponed, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia issued an order on April 26, 2016 setting September 26, 2016 as the start of the Rail Freight Fuel Surcharge Antitrust Litigation class certification hearing. Five days have been reserved for the hearing, if necessary. Judge Friedman’s order also states: “The parties shall file a joint report on or before June 10, 2016 setting forth their respective positions regarding the structure of the class certification hearing and time allocations for opening statements, closing arguments, and the presentation of evidence, including expert witness testimony. The names of all witnesses should be included.”

Next Steps

The next steps scheduled in the fuel surcharge case are:

  • May 3, 2016: Status conference at 10:00 a.m.
  • June 10, 2016: Joint report due on hearing format, time allocations and list of witnesses.
  • September 26, 2016: Class certification hearing starts at 9:30 a.m.

Fuel Surcharge Litigation Background

In the fuel surcharge case, the plaintiff shippers are suing the Class I railroads to recover damages from an alleged conspiracy to overcharge for fuel. The plaintiffs seek class certification so that the shippers as a group may file a single lawsuit. The District Court first certified the putative class in 2012, but the U.S. Court of Appeals for the District of Columbia Circuit reversed the certification order because of questions as to whether the plaintiffs’ expert’s economic model was defective and whether the District Court’s analysis was consistent with the U.S. Supreme Court’s intervening “clarification” of class certification standards in Comcast Corp. v. Behrend. On remand, the District Court instituted a process for reconsideration that included a new, extensive round of expert discovery. That discovery and briefing have been completed.

A new class certification hearing was previously scheduled to start on November 2, 2015, but that date was vacated by Judge Friedman on September 28, 2015 after the Supreme Court granted certiorari in another class action case, Tyson Foods, Inc. v. Bouaphakeo. Judge Friedman ordered the parties to file additional briefs after the Supreme Court’s decision in Tyson Foods, which was issued on March 22, 2016. On April 15, the parties filed briefs regarding the Tyson Foods decision’s impact on the fuel surcharge case, followed on April 25 by a joint statement proposing the current dates for the rescheduled class certification hearing.