Key Notes:

  • Five-day hearing to begin September 26
  • 90-minute direct/redirect examination and 90-minute cross-examination of each of five experts
  • Four hours each side for opening statements
  • 90 minutes each side for closing arguments
  • By September 9, each side must file:
    • 15-page summary of experts
    • List of topics and format for opening statements

Judge Paul L. Friedman of the U.S. District Court for the District of Columbia issued an order on July 7, 2016 establishing the format of the Rail Freight Fuel Surcharge Antitrust Litigation class certification hearing to be held over the course of five days starting on September 26, 2016.

Most significantly, the court decided that it desires live testimony, including direct examination and cross-examination, from three of the plaintiffs’ economic experts and two of the defendants’ experts who challenge the methodologies and opinions of the plaintiffs’ experts. The court has reserved 90 minutes for direct (and redirect) examination and 90 minutes for cross-examination of each expert witness. Specifically, the court ordered testimony by Gordon Rausser, Jeffery Leitzinger and James McClave for the plaintiffs, and Joseph Kalt and Dennis Carlton for the defendants. The court also requested that each side provide, by September 9, 2016, a 15-page summary report for each expert, summarizing the subject matter of the expert’s testimony and the expert’s opinions and methodologies.

The court’s decision represents a compromise between the parties’ positions offered in a joint report filed on June 10, 2016. The plaintiffs had asked to limit live testimony to cross-examination of experts, while the defendants had requested a total of nine hours per side for the presentation of expert reports through live testimony. Ultimately, the court preserved the direct and cross-examination of each expert sought by the defendants, while providing somewhat less time for expert examination than requested by the defendants.

In addition, the plaintiffs and defendants each will be allocated four hours for opening arguments. The court requested that the parties submit, by September 9, 2016, a proposed list of topics for opening statements, with the amount of time needed for each topic, and that they suggest whether the plaintiffs’ rebuttal should occur after each topic, or once at the close of all opening statements.

Finally, the court allocated 90 minutes to each side for closing arguments, with the defendants presenting theirs first.

The class certification proceedings will be held between 9:30 a.m. and 5:00 p.m. each day between September 26 and September 30, except for September 29, when proceedings will conclude at 3:30 p.m.

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 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 about 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 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, and Judge Friedman ordered the parties to file additional briefs after the Supreme Court reached its decision in that case. The Supreme Court issued its decision on March 22, 2016, and on April 15 the parties filed briefs regarding the Tyson Foods decision’s impact on the fuel surcharge case.