By Randy Gordon, President and CEO
NGFA has been advised that rail customers involved in an antitrust lawsuit against four Class I railroads for allegedly conspiring to fix fuel surcharge levels have until Sept. 30 to preserve their own antitrust claims following the denial of class-action status by two federal courts.
On Aug. 16, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a decision by the U.S. District Court for the D.C. Circuit to deny class-action certification to approximately 16,000 rail shippers that alleged a price-fixing conspiracy among the four largest U.S. railroads – the BNSF Railway, CSX Transportation Inc., Norfolk Southern Railway Co. and Union Pacific Railroad Co. – in setting rail fuel surcharges as a percentage of the base transportation rate between July 1, 2003 and Dec. 31, 2008. The class-action case arose following the filing of 18 separate antitrust actions in 2007-08 that subsequently were consolidated by the Federal Multidistrict Litigation Panel. Thereafter, the action was divided into two cases – one involving eight shippers that directly paid the fuel surcharges and the other comprised of indirect purchasers. The eight direct purchasers sought class-action certification from the district court, which ultimately concluded that the case could not be tried as a class action under applicable federal rules and case precedent. The U.S. appellate court upheld the district court’s ruling.
“While the district court found that the requirements for a class-action case had not been met, it also found on two occasions that the factual record demonstrated that the complained-of collusion between the railroads very likely did occur, a finding that exposes the carriers to liability in individually filed cases,” according to NGFA Transportation Counsel Tom Wilcox, a principal attorney at GKG Law PC, Washington, D.C. “The amount of (fuel surcharge) overcharges during the relevant time period is estimated in the billions of dollars.”
Options for Rail Customers: Wilcox noted that, under the statute of limitations, affected rail users now have until Sept. 30 to preserve their own individual antitrust claims by filing a formal complaint, either individually or with a group of similarly situated companies. Questions and requests for additional information may be directed to Wilcox at email@example.com.