Kaplan Fox & Kilsheimer LLP serves on the plaintiffs’ executive committee for the In re Rail Freight Fuel Surcharge Antitrust Litigation (MDL Docket No. 1869), pending in the United States District Court for the District of Columbia. This is a class action brought on behalf of purchasers of rail freight transportation services during the period July 1, 2003 to December 31, 2008. Plaintiffs allege that the defendants conspired to coordinate their fuel surcharge programs as a means to fix, raise, maintain, and/or stabilize prices of rail freight transportation services sold in the United States.
The four defendants – BNSF Railway Company, Union Pacific Railroad Company, CSX Transportation, Inc. and Norfolk Southern Railway Company – are the dominant freight railroads in the United States. Together, the defendants possess a 90% market share based on track miles and a 94% market share based on rail freight revenue.
On November 6, 2007, the Multidistrict Litigation Panel centralized eighteen related antitrust class actions and transferred the actions to the District of Columbia. Plaintiffs filed a consolidated amended class action complaint on April 15, 2008 and the defendants filed motions to dismiss on May 30, 2008. On November 7, 2008, the Honorable Paul L. Friedman issued an order and opinion denying defendants’ motion to dismiss plaintiffs’ direct purchaser claims. In re Rail Freight Fuel Surcharge Antitrust Litig., 587 F. Supp. 2d 27 (D.D.C. 2008).
On March 18, 2010, the direct purchaser plaintiffs filed a motion for certification of a class of all entities or persons that at any time from July 1, 2003 until December 31, 2008 purchased rate-unregulated rail freight transportation services directly from one or more of the defendants, as to which defendants assessed a stand-alone rail freight fuel surcharge applied as a percentage of the base rate for the freight transport (or where some or all of the fuel surcharge was included in the base rate through a method referred to as "rebasing"). Defendants filed an opposition to class certification on July 1, 2010.