In 2019, Slover & Loftus LLP, joined by Vinson & Elkins LLP as co-counsel, filed a complaint on behalf of several rail shippers in United States District Court for the District of Columbia (“District Court”), alleging that the four major Class I railroads (BNSF, UP, NS and CSXT) (collectively the “Railroads”) conspired in violation of the federal antitrust laws to fix fuel surcharges. The case was filed after the District Court ruled that similar cases, filed earlier by other counsel, could not proceed as a class action. Both groups of cases are under the under the case caption In Re Fuel Surcharge Antitrust Litigation, with the first group of cases commonly referred to as “MDL I,” while the Slover & Loftus/Vinson & Elkin cases are part of a second group commonly referred to as “MDL II.”
Last year, the Railroads filed a motion in MDL I asking Presiding Judge Paul L. Freidman to rule that highly probative documentary evidence of the carriers’ conspiracy was not admissible at trial by operation of a federal statute, 49 U.S.C. § 10706, that Congress enacted over forty years ago principally to regulate pricing actions undertaken by railroads in rate bureaus. The Railroads’ motion was opposed by all plaintiffs in MDL I and MDL II, as well as by the United States Department of Justice, the Federal Trade Commission, and the Surface Transportation Board.
Slover & Loftus and Vinson & Elkins actively participated in the briefing and argument of the Railroads’ Section 10706 motion. In a major win for plaintiff rail shippers, Judge Friedman issued an order denying the Railroad’s motion. See In re Rail Freight Fuel Surcharge Antitrust Litigation, MDL Docket No. 1869 (D.D.C. Feb. 19, 2021). In his accompanying 56-page opinion, Judge Friedman held that the Railroads’ expansive interpretation of Section 10706 found no support whatsoever in the text, legislative history, or administrative interpretation of the statute.