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In Re Rail Freight Fuel Surcharge

June 21, 2012

IN RE RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION


The opinion of the court was delivered by: Paul L. Friedman United States District Judge

This document relates to:

ALL DIRECT PURCHASER CASES

ORDER

For the reasons set forth in the Opinion issued under seal this same day, it is hereby ORDERED that

1. The direct purchaser plaintiffs' motion for class certification [Dkt. No. 337] is GRANTED.

2. This case is certified as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure for purposes of litigation and trial.

3. The class is defined as follows:

All entities or persons that at any time from July 1, 2003 until December 31, 2008 (the "Class Period") purchased rate-unregulated rail freight transportation services directly from one or more of the Defendants, as to which Defendants assessed a stand-alone rail freight fuel surcharge applied as a percentage of the base rate for the freight transport (or where some or all of the fuel surcharge was included in the base rate through a method referred to as "rebasing") ("Fuel Surcharge").

Excluded from this Class definition are (a) Defendants, any subsidiaries or affiliates of Defendants, any of Defendants' co-conspirators, whether or not named as a Defendant in the Complaint, and all federal governmental entities, and (b) all entities or persons that paid a Fuel Surcharge directly to any of the Defendants solely pursuant to a railroad-shipper contract that was

(i) entered into before July 1, 2003, and (ii) provided for a stand-alone Fuel Surcharge to be paid under a predetermined formula specifically set forth in the contract.

4. The class claim is the direct purchaser plaintiffs' claim for price fixing in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. This claim is certified for class treatment.

5. The eight named plaintiffs - Dust Pro, Inc.; Carter Distributing Company; Dakota Granite Company; Donnelly Commodities, Inc.; U.S. Magnesium LLC; Nyrstar Taylor Chemicals, Inc.; Olin Corporation; and Strates Shows, Inc. - are designated as the class representatives.

6. Under Rule 23(c)(1)(B) and (g) of the Federal Rules of Civil Procedure, the Court appoints Quinn Emanuel Urquhart & Sullivan, LLP ("Quinn Emanuel") and Hausfeld LLP ("Hausfeld") as co-lead class counsel for the class. The Court finds that the designation of Quinn Emanuel and Hausfeld as co-lead class counsel is in the best interests of the class because both firms (a) have zealously represented the interests of the class in litigating this case while serving as interim co-lead class counsel; (b) have extensive relevant experience in complex antitrust litigation and knowledge of the law applicable to this case; and (c) are willing to commit the resources necessary to represent the class. The duties of co-lead class counsel shall be the same as the duties designated to those firms while serving as interim co-lead class counsel, as set forth in the Court's Orders of March 11, 2008 [Dkt. No. 71], April 28, 2008 [Dkt. No. 99], and April 3, 2009 [Dkt. No. 269].

7. The direct purchaser plaintiffs' motion for an order directing the parties to meet and confer concerning scheduling [Dkt. No. 537] is GRANTED. Under Rule 23(f) of the Federal Rules of Civil Procedure, the court of appeals may permit an appeal from this Order granting class certification "if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered." FED. R. CIV. P. 23(f). "An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders." Id. By July 10, 2012, the parties shall meet and confer and shall file a joint notice with the Court regarding how they wish to proceed in this case; the parties specifically shall address (a) whether defendants have filed a petition for ...


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