IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION - MDL 1869

Filing 918

MEMORANDUM OPINION AND ORDER re briefing on the Section 10706 issue. Defendants' motion supplementing their previous Section 10706 filings shall be due on or before February 21, 2020; plaintiffs' responses shall be due on or before April 3,2020; defendants' reply shall be due on or before April 24, 2020; and oral argument is scheduled on May 7, 2020 at 10:00p a.m. Signed by Judge Paul L. Friedman on December 19, 2019. (MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________

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In re RAIL FREIGHT FUEL SURCHARGE
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ANTITRUST LITIGATION
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__________________________________________)
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This document relates to:
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ALL DIRECT PURCHASER CASES
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__________________________________________)
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OXBOW CARBON & MINERALS LLC, et al.,
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Plaintiffs,
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v.
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UNION PACIFIC RAILROAD COMPANY
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and
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BNSF RAILWAY COMPANY,
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Defendants.
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__________________________________________)

MDL Docket No. 1869
Miscellaneous No. 07-0489 (PLF/GMH)

Civil Action No. 11-1049 (PLF/GMH)

MEMORANDUM OPINION AND ORDER
The Court has reviewed the joint submissions concerning proposed schedules
filed on December 4, 2019 in the Rail Freight case [Dkt. No. 900] and in Oxbow [Dkt. No. 160],
as well as the joint supplemental submissions filed at the Court’s request in each case on
December 16, 2019 [Dkt. No. 917 in Rail Freight, Dkt. No. 162 in Oxbow]. The Court
understands that the parties now agree that the Court is being asked to resolve two issues within
the next year or so – (1) the meaning and scope of 49 U.S.C. § 10706, and (2) summary
judgment on the question of liability only – and that no Daubert issues will need to be resolved
by this Court. Damages discovery, involving expert witnesses, will be proceeding at the same

time on a parallel track. Any discovery disputes will be resolved by Magistrate Judge G.
Michael Harvey.
In their supplemental submission in Rail Freight, the parties now agree that
resolution of the Section 10706 issue and any liability-related summary judgment motions need
not await supplemental expert disclosures and expert discovery or the resolution of Daubert
motions. These matters relate to damages, and the summary judgment motions to be resolved by
this Court will relate only to liability. See Dkt. No.917 at 2-3, 4-5. The parties agree that neither
the expert disclosures or any subsequent Daubert motions or damages-related summary judgment
motions need to be resolved before this Court decides the Section 10706 issue and summary
judgment as it relates to liability. See id.at 3, 5.
While Oxbow still believes that Daubert motions will need to be briefed in
Oxbow, they do not disagree that the Section 10706 issue and summary judgment relating to
liability should be resolved separate and apart from Daubert. See Dkt. No. 162 at 1-2.
In their joint submission in Rail Freight, the parties represent that the parties in
the related cases – that is, the eleven cases designated as related that recently have been filed
before this Court – believe that briefing should begin promptly on the Section 10706 and liability
issues “on a single, coordinated schedule in the MDL and in Oxbow,” and that briefing on those
issues should proceed while damages and other case-specific issues in the related cases proceed
on parallel tracks. See Docket No. 917 at 6. The related parties may wish to file briefs on the
Section 10706 and liability issues but will endeavor to avoid duplicative briefing. Id. 1
The parties in Rail Freight disagree as to whether additional briefing is required
on the Section 10706 issue and whether there needs to be an evidentiary hearing on the Section

1

The Court expects the parties in Rail Freight and/or in the eleven related cases to
take the necessary steps either in this Court or before the MDL to make sure all the related cases
are consolidated and coordinated before the undersigned and Magistrate Judge Harvey.
2

10706 issue. Compare Dkt. No. 900 at 1-5 with id. at 12-13. After carefully considering the
respective positions of the parties, the Court will allow limited additional briefing on the Section
10706 issue, but it sees no purpose to be served by an evidentiary hearing. Damages discovery
may proceed on separate tracks at the same time. Setting schedules for discovery and resolving
all discovery disputes with respect to both fact and expert discovery in all of the cases will be the
responsibility of Magistrate Judge Harvey. Accordingly, it is hereby
ORDERED that on or before February 21, 2020, the defendants shall file their
motion and/or memorandum of law supplementing their previous Section 10706 filings; it is
FURTHER ORDERED that on or before April 3, 2020, the plaintiffs in both Rail
Freight and Oxbow shall file their responses to defendants’ Section 10706 motion or
memorandum (including any supplement to their previous Section 10706 filings). Plaintiffs in
the related cases may file any responses to defendants’ Section 10706 motion (with efforts to
avoid duplicative arguments) on the same date; it is
FURTHER ORDERED that on or before April 24, 2020, the defendants shall file
a reply in support of their Section 10706 motion; it is
FURTHER ORDERED that oral argument on the Section 10706 motion is
scheduled for May 7, 2020 at 10:00 a.m.; and it is

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FURTHER ORDERED that the plaintiffs and defendants’ initial briefs in Rail
Freight and Oxbow are limited to 45 pages, defendants’ reply to 25 pages. The schedule for
briefing of summary judgment on the question of liability will be set after the Court rules on the
Section 10706 issue.
SO ORDERED.

__________________________
PAUL L. FRIEDMAN
United States District Judge

DATE: December 19, 2019

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