RAILROADS (RATES & CLASS CERTIFICATION) / U.S. Circuit Court of Appeals for the D.C. Circuit overturned the decision of the U.S. District Court for the District of Columbia that had granted class certification that could involve as many as 30,000 shippers (Journal of Commerce estimate) in a lawsuit against CSX Transportation, BNSF, Union Pacific Railroad, and the Norfolk Southern Railroad to recover damages on what plaintiffs contend was a price-fixing conspiracy relating to rate-based fuel surcharges on rail shipments on the four defendant railroads.

In a unanimous opinion by for the three-judge panel by Judge Janice Rogers Brown, the court sent the litigation back to the district court with instructions to reconsider the class certification issue in light of the U.S. Supreme Court precedent of Comcast v. Behrens.

In re: Rail Freight Fuel Surcharge Antitrust Litigation, No. 12-7085 (U.S. Court of Appeals for the D.C. Circuit, August 9, 2013). Copy of court-provided opinion available here.

UPCOMING: RAILROAD / Antitrust case alleges four largest U.S. freight railroads conspired to impose “rate-based” fuel surcharges (i.e., calculated as a percentage of base transportation rate – not mileage or other basis). Seeks money damages in 10 figures (after trebling). Railroads seek interlocutory (i.e., before final disposition in trial court) review of class certification issues.

Before the United States Court of Appeals, District of Columbia Circuit.


No. 12-7085

Pending Appeal:

On Petition for Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f). 2012 WL 6018796 (December 3, 2012).

How Interlocutory Appellants-Defendant Railroads Describe the Case: 


“Whether interlocutory review is appropriate to resolve one or more of the following class certification issues:

“(1) Whether the district court erroneously certified a class on the ground that common evidence can establish “widespread” injury and damages, notwithstanding the fact that the class contains members who suffered no injury and individualized assessments of Continue reading