IN RE RAIL FREIGHT FUEL SURCHARGE ANTITRUST

No. 12-7085.

725 F.3d 244 (2013)

In re RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION-MDL NO. 1869, BNSF Railway Company, et al., Petitioners.

United States Court of Appeals, District of Columbia Circuit.

Decided August 9, 2013.


Attorney(s) appearing for the Case

Carter G. Phillips argued the cause for petitioners. With him on the briefs were Joseph R. Guerra , Saul P. Morgenstern , Maureen E. Mahoney , J. Scott Ballenger , Alan M. Wiseman , Thomas A. Isaacson , Theodore J. Boutrous, Jr. , John M. Nannes , Tara L. Reinhart , Tyrone R. Childress , David G. Meyer , Veronica S. Lewis , Kent A. Gardiner , Kathryn D. Kirmayer , Andrew S. Tulumello , Samuel L. Sipe, Jr. , and Linda Stein.

Theodore J. Boutrous, Jr. , Andrew S. Tulumello , and Veronica S. Lewis were on the briefs for petitioner BNSF Railway Company. Richard J. Favretto , Michael E. Lackey, Jr. , and G. Paul Moates entered appearances.

Mark T. Stancil , Robin S. Conrad , and Sheldon Gilbert were on the briefs for amicus curiae Chamber of Commerce of the United States of America in support of petitioners.

Stephen R. Neuwirth argued the cause for respondents. With him on the brief were William B. Adams , Michael D. Hausfeld , and Michael P. Lehmann.

Before: GARLAND, Chief Judge, BROWN, Circuit Judge, and SENTELLE, Senior Circuit Judge.


BROWN, Circuit Judge:

Over the last decade, the four major freight railroads imposed rate-based fuel surcharges on shipments over their tracks. Although the practice had existed for some time, it proliferated and intensified early last decade. Suspecting foul play, a group of shippers who paid these surcharges brought an antitrust suit accusing the freight railroads of engaging in a price-fixing conspiracy. They also sought and obtained certification of a class including...

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