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In Re Rail Freight Fuel Surcharge Antitrust Litigation

September 20, 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

OPINION

This matter is before the Court on defendants' motion to stay proceedings under Rule 23(f) of the Federal Rules of Civil Procedure pending resolution of their petition to appeal the Court's order granting class certification. The Court heard oral argument on the stay motion on September 13, 2012. Upon consideration of the parties' papers, the oral arguments presented by counsel, the relevant legal authorities, and the entire record in this case, the Court will grant the defendants' motion as it relates to dissemination of class notice, and deny the motion as it relates to expert discovery, Daubert motions, and summary judgment briefing. This Court will postpone ruling on any summary judgment motions until after the court of appeals has addressed defendants' petition (and, if it grants the petition, the merits of the appeal), notice has been sent to the class, and class members are afforded the opportunity to opt out of the class.

I. BACKGROUND

The Court has described the background of this case previously. See In re Rail Freight Fuel Surcharge Antitrust Litig. ("Rail Freight I "), 587 F. Supp.2d 27, 29--31 (D.D.C. 2008); In re Rail Freight Fuel Surcharge Antitrust Litig. ("Rail Freight II "), 593 F. Supp.2d 29, 32, 34--35 (D.D.C. 2008), aff'd, Fayus Enters. v. BNSF Ry. Co., 602 F.3d 444 (D.C. Cir. 2010); In re Rail Freight Surcharge Antitrust Litig. ("Rail Freight III"), -- F.R.D. --, 2012 WL 2870207, at *1-11 (D.D.C. June 21, 2012). It therefore will limit its discussion accordingly.

Plaintiffs allege that defendants - BNSF Railway Company ("BNSF"); CSX Transportation, Inc. ("CSX"); Norfolk Southern Railway Company ("NS"); and Union Pacific Railroad Company ("UP") - engaged in a price fixing conspiracy to coordinate their fuel surcharge programs in order to impose supra-competitive total price increases on their shipping customers. See Rail Freight III, 2012 WL 2870207, at *1. The plaintiff class is composed of persons and entities that allegedly purchased rail freight transportation services directly from defendants during the class period, and who were assessed a rail fuel surcharge for those services. Id. at *2. This litigation has been pending before the Court since November 2007. Plaintiffs moved for certification of the class on March 18, 2010. The Court heard oral argument in October 2010, but delayed its decision on class certification to consider the potential implications of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). On June 21, 2012, the Court granted the plaintiffs' motion for class certification. Rail Freight III, 2012 WL 2870207.

Defendants promptly filed a petition in the United States Court of Appeals for the District of Columbia Circuit seeking leave to appeal the class certification decision under Rule 23(f). A motions panel of the D.C. Circuit has referred the petition to the merits panel. In re Rail Freight Surcharge Antitrust Litig., No. 12-8008 (D.C. Cir. Aug. 28, 2012). The briefing schedule in the Circuit, initially set to run through November 2012, has been suspended pending further order of the court, and oral argument has not yet been scheduled in this case. See In re Rail Freight Surcharge Antitrust Litig., No. 12-7085 (D.C. Cir. Aug. 31, 2012) (scheduling order); In re Rail Freight Surcharge Antitrust Litig., No. 12-7085 (D.C. Cir. Sept. 19, 2012) (order suspending briefing). Defendants seek a stay of proceedings in this Court pending resolution of the Rule 23(f) petition in the D.C. Circuit. Plaintiffs oppose this motion and urge the Court to direct the parties to proceed with expert discovery, notice to potential class members, and Daubert and summary judgment briefing.

II. LEGAL STANDARD

Rule 23(f) of the Federal Rules of Civil Procedure provides that a court of appeals, in its discretion, may allow an appeal from a district court order granting or denying class certification. "An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders." Fed. R. Civ. P. 23(f).

Although the D.C. Circuit has not yet articulated the standard for evaluating a proposed stay pending decision on a Rule 23(f) petition, Judge Hogan has applied the established four-factor balancing test used for preliminary injunctions and other injunctive relief. In re Lorazepam & Clorazepate Antitrust Litig., 208 F.R.D. 1, 3 (D.D.C. 2002); see also Blair v. Equifax Check Servs., 181 F.3d 832, 835 (7th Cir. 1999) (noting that a court should engage in the same analysis when deciding whether to grant a stay under Rule 23(f) as when court considers granting preliminary injunctions and stays of administrative decisions). Under this test, a court should consider the following:

(1) whether there is a substantial likelihood that the movant will succeed on the merits of the claims/appeal;

(2) whether the movant will suffer irreparable injury if an injunction/stay does not issue;

(3) whether others will suffer harm if an injunction/stay ...


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