Rail shippers defeat BNSF, CSX, NS, and UP’s attempts to insulate anticompetitive conduct from liability

WASHINGTON, D.C., February 19, 2021 –  Today, in the United States District Court for the District of Columbia, Judge Paul Friedman denied a motion by the defendant railroads BNSF, CSX, NS, and UP in In re Rail Freight Fuel Surcharge Antitrust Litigation (Case No. 07-489) to exclude certain evidence from future antitrust trials. The plaintiffs in this multidistrict litigation, which began as a class action and now comprises more than 200 of the country’s largest rail shippers, allege that the railroads unlawfully fixed prices through collusive fuel-surcharge programs and policies, beginning in 2003.

The railroads contended, in numerous filings and a day-long virtual hearing in August 2020, that evidence of competitor communications and agreement must be excluded because a federal statute (49 U.S.C. § 10706) permits limited communications between railroads as to particular “interline” shipments (which require multiple railroads to reach their final destination).  The plaintiffs and the Department of Justice disagreed with the railroads’ statutory interpretation and the application of the statute to the evidence of conspiracy here, making the case that Congress never intended to immunize railroads from antitrust liability altogether.

At the heart of Judge Friedman’s analysis is his conclusion that the defendants’ proposals would extend statutory protection to their conversations about, and agreements on, competing traffic.  The opinion states:

“The Court does not agree with the defendants. Applying the statute in the way they suggest would extend its protection to discussions or agreements involving competing traffic of the rail carriers. This interpretation is inconsistent with Congress’s stated purpose to protect limited categories of discussions and agreements that concern interline movements. See H.R. REP. NO. 96-1430, at 114 (“The Conferees intend that these protections be construed to insure that remedies for anticompetitive activities remain under existing laws.”). . . . . [R]ail carriers are not in competition with regard to a shared interline movement, but they remain competitors with regard to other traffic, including single-line traffic and interline traffic in which they do not participate.”

Hausfeld Partner Sathya Gosselin, who presented oral argument at the August 2020 hearing, stated:

“Today’s ruling is an important victory for the railroad shipper community, which is now one step closer to trial in this longstanding price-fixing case.  The Court’s careful and reasoned decision makes clear that BNSF, CSX, NS, and UP have to compete on the merits – both on their tracks and in the courtroom – and a jury will ultimately decide, with a full view of the evidence in this case, whether the railroads violated the antitrust laws and need to compensate their customers.”

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