The railroad fuel surcharge antitrust class action litigation continues to make forward progress. Briefing in the U.S. Court of Appeals for the District of Columbia Circuit is complete, and the court has scheduled oral argument on the railroads' petition for leave to appeal the District Court's class certification order in In re Rail Freight Fuel Surcharge Antitrust Litigation. Argument is set for May 3, 2013, at 9:30 a.m. before Judges Garland, Brown and Sentelle.

On March 12, 2013, the D.C. Circuit issued a modified procedural schedule based on agreements between the plaintiffs and defendants. This revised schedule adds between two and six months to certain deadlines:

  • 6/11/2013 - Plaintiffs' rebuttal expert reports are due.
  • 8/9/2013 - All expert depositions to be completed.
  • 10/2/2013 - All Daubert and summary judgment motions are due.
  • 12/3/2013 - All opposition briefs to Daubert and summary judgment motions are due.
  • 1/13/2014 - All reply briefs in support of Daubert and summary judgment motions are 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.