Kramer Levin Naftalis & Frankel LLP

Funds — through their portfolio companies — may have a significant antitrust opportunity against the major U.S. railroad companies.

Kramer Levin is representing Procter & Gamble in an antitrust lawsuit against BNSF Railway Company, Union Pacific Railroad Company, CSX Transportation Inc. and Norfolk Southern Railway Company (the Railroads). The action alleges that from 2003 – 2008 the Railroads participated in a price-fixing conspiracy whereby they charged uniform fuel surcharges to their customers that bore no relationship to their actual fuel costs. The complaint can be found here.

To date, there have been more than 90 substantially similar actions filed against the Railroads by the Railroads’ major customers, which have been consolidated for pretrial purposes in a multidistrict litigation proceeding, Rail Freight Fuel Surcharge Antitrust Litigation (No. II), MDL No. 2925, in the U.S. District Court for the District of Columbia. The plaintiffs reflect a broad spectrum of companies including major energy companies; utilitiesmining and minerals companies; chemicals and plastics companies; steel companies; construction materials companies; paper, pulp and packaging companies; agribusiness companies; food and beverage companies; waste management and recycling companies; logistics companies; consumer goods companies; and automakers.

All of these actions were filed in the past six months, after a long-standing putative class action dissolved when the D.C. Circuit Court of Appeals affirmed a denial by the district court of class certification. While the district court refused to grant class certification for technical reasons, the court repeatedly stated in written opinions that the case against the Railroads on the merits is strong.

Interested companies should obtain a rough idea of their U.S. rail freight costs from 2003 – 2008 as soon as possible, as the potential damages are diminishing by the day. While the statute of limitations was tolled during the class case, it began to run again in August 2019.

Under the U.S. federal antitrust laws, damages are automatically trebled.

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