On September 28, 2015, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia issued an order vacating the Rail Freight Fuel Surcharge Antitrust Litigation class certification hearing that had been scheduled to start on November 2, 2015. A new hearing date will be scheduled after the U.S. Supreme Court decides Tyson Foods, Inc. v. Bouaphakeo. Judge Friedman’s order states: “Within fourteen days after the Supreme Court decides Tyson Foods, the parties shall file a joint statement proposing a schedule for supplemental briefing and supplemental expert reports, if necessary, and available dates for a hearing.”

Tyson Foods

The Supreme Court granted certiorari (agreed to review the lower court’s decision) in the Tyson Foods case on June 8, 2015. The Supreme Court’s review could have an impact on the fuel surcharge case because the Court will address class certification when differences exist among putative class members, including situations where members of the putative class may not have been injured. Similar issues have been raised in the pending fuel surcharge case.

The respondents in TysonFoods were certified as a class, and a verdict was returned in their favor at trial. On appeal to the Eighth Circuit, the decision was affirmed and a rehearing en banc was denied. The Supreme Court has scheduled argument on November 10, 2015, and a decision will not come down until the first half of 2016.

Fuel Surcharge Litigation

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 sue in a single lawsuit. The District Court first certified the putative class in 2012, but the railroads successfully secured a reversal of the certification by arguing on appeal that the plaintiffs’ expert’s economic model was defective and by relying upon the 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 has been completed.