On Aug. 9, in In re Rail Freight Fuel Surcharge Antitrust Litigation, MDL No. 1869, No. 12-7085, 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013), the U.S. Court of Appeals for the District of Columbia applied the U.S. Supreme Court’s decision in Comcastv. Behrend to reverse a district court decision certifying a class of 30,000 direct purchasers of rail shipping services, holding that proof of injury on a classwide basis was a prerequisite to certification. Plaintiffs alleged that several major railroad freight companies conspired to fix, raise, maintain or stabilize fuel surcharges on shipping from mid-2003 until 2008.
While both the 6th and 7th Circuits have downplayed the significance of Comcast and have upheld class certifications on the basis that the Supreme Court’s decision “breaks no new ground,” the D.C. Circuit appeared to breathe new life into the Supreme Court’s decision by overturning certification on the basis that plaintiffs failed to “show that they can prove, through common evidence, that all class members were in fact injured ....” Indeed, In re Rail Freight falls in line with the Supreme Court’s apparent recent disfavor of class actions and suggests a higher standard for plaintiffs seeking to pursue a class action after Comcast.