In re Rail Freight Fuel Surcharge Antitrust Litig.

CourtUnited States District Courts. United States District Court (Columbia)
Docket NumberMisc. Action No. 20-00008 (BAH),MDL Docket No. 2925
Decision Date12 May 2021

Chief Judge Beryl A. Howell


After nearly fifteen years of litigation in this District related to their central allegations that defendants, the four largest railroads operating in the United States, engaged in a multi-year price-fixing conspiracy to increase the price of rail-freight transport, plaintiffs in this multidistrict litigation, In re Rail Freight Fuel Surcharge Antitrust Litigation ("MDL II"), MDL No. 2952, Misc. A. No. 20-00008 (BAH) (D.D.C.), seek an order requiring extensive new discovery, including four years, or even more, of additional transaction data for certain plaintiffs' purchases of rail-freight transport from defendants. Pls.' Mot. Compel Produc. Post-2008 Transaction Data & Price Authorities ("Pls.' Mot.") at 1, ECF No. 543. Defendants, for their part, oppose plaintiffs' request and move for reconsideration of this Court's unambiguous conclusion in its decision on their motions to dismiss ten individual complaints that "'Plaintiffs' allegations of harm caused by effects of the July 1, 2003-December 31, 2008 conspiracy that extended beyond December 31, 2008 are tolled'" under the exception to the running of the statute of limitations for former putative class members set forth in American Pipe & Construction Co. v. Utah ("American Pipe"), 414 U.S. 538 (1974), and may proceed. Defs.' Mot. Recons. & Opp'n Pls.' Mot. Compel ("Defs.' Mot.") at 1, ECF No. 561 (quoting In re Rail Freight Fuel Surcharge Antitrust Litig. (No. II) ("Tolling Decision"), MDL No. 2925, Misc. A. No. 20-00008 (BAH), 2020 WL 5016922, at *24 (D.D.C. Aug. 25, 2020)).

A hearing on the pending motions was held on May 6, 2021. See Min. Entry (May 6, 2021); Tr. of Hr'g (May 6, 2021) ("May 6 Hr'g Tr."), ECF No. 620. For the reasons set forth below, defendants' Motion for Reconsideration is denied and plaintiffs' Motion to Compel is granted in part and denied in part.


The extensive factual and procedural background of this multidistrict litigation has been fully summarized in the Tolling Decision denying defendants' motions to dismiss, in whole or part, ten individual complaints in MDL II. See Tolling Decision, 2020 WL 5016922, at *1-6. Only those facts necessary for resolving the instant motions are provided herein.

A. Creation of MDL II and the Tolling Decision

The more than 300 rail-freight-shipper plaintiffs in MDL II allege that defendants "engaged in a multi-year price-fixing conspiracy to increase the price of rail freight transport through their coordinated efforts to cause an industry trade group to adopt a new cost index that excluded the cost of fuel and then to implement, in lockstep, artificially inflated fuel surcharges, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15." Id. at *1. This theory was originally advanced in another multidistrict litigation created in 2007 and still pending in this District, In re Rail Freight Fuel Surcharge Antitrust Litigation ("MDL I"), MDL No. 1869, No. 07-mc-00489-PLF-GMH (D.D.C.), "in which a putative class of direct purchasers of unregulated rail freight services alleged the same conspiracy, occurring from 2003 to 2008, against the same defendants," Tolling Decision, 2020 WL 5016922, at *1 (citing In re Rail Fuel Surcharge Antitrust Litig., 287 F.R.D. 1, 13 (D.D.C. 2012)). The class was defined as direct purchasers of rail-freight transport who paid "astandalone rail freight fuel surcharge applied as a percentage of the base rate" at "any time from July 1, 2003 until December 31, 2008" (the "MDL I class period"). Id. at *4 (internal quotation marks and citation omitted); see also id. at *14-17. Class certification was denied in 2019, see In re Rail Freight Fuel Surcharge Antitrust Litig.—MDL No. 1869, 934 F.3d 619, 627 (D.C. Cir. 2019), and plaintiffs, former absent putative class members in MDL I, subsequently brought individual complaints largely repeating the claims of the putative class, Tolling Decision, 2020 WL 5016922, at *1, *5-6.

On February 6, 2020, the Judicial Panel on Multidistrict Litigation ("JPML") consolidated twenty-six individual cases brought by former putative class members in MDL I for pretrial proceedings in this Court in MDL II. Transfer Order at 1, ECF No. 1. Since its creation, another eighty-one cases initiated by former putative class members have been consolidated in this multidistrict litigation, for a total of 107 individual cases and over 300 plaintiffs as of this writing. The MDL II plaintiffs, like the putative MDL I class, allege that defendants' conspiracy took place between July 1, 2003 and December 31, 2008, but their individual actions were filed between November 2019 and April 2021. Their claims would therefore be untimely under the Clayton Act's four-year statute of limitations, see 15 U.S.C. § 15b, but for the tolling made generally available to former putative class members under American Pipe. The American Pipe rule "suspends the applicable statute of limitations," 414 U.S. at 554, as to all putative class members' individual claims concerning "the same evidence, memories, and witnesses as the subject matter of the original class suit," United Airlines, Inc. v. McDonald, 432 U.S. 385, 393 n.14 (1977) (internal quotation marks and citation omitted), "until class certification is denied," Crown, Cork & Seal Co. v. Parker ("Crown"), 462 U.S. 345, 354 (1983). The statute of limitations as to most of the MDL II plaintiffs' claims, which are substantively identical to theclaims of the MDL I class, thus began to run only after the 2019 denial of class certification in MDL I. See Tolling Decision, 2020 WL 5016922, at *12.

A handful of the MDL II complaints contain allegations that differ from the allegations of the putative MDL I class, including, as relevant here, allegations that certain plaintiffs experienced continuing harm from the conspiracy after December 31, 2008, the date on which the putative class period in MDL I ended, because they "continued to pay supracompetitive [fuel surcharges] to [d]efendants for several years after the conspiracy ended, pursuant to the multi-year contracts [they] had entered or renegotiated with [d]efendants prior to the end of the conspiracy." Id. at *9 (first, second, and fourth alterations in original) (internal quotation marks and citation omitted). Defendants moved to dismiss or strike allegations in these ten complaints, arguing that their divergence from the former class's allegations deprived them of the benefit of American Pipe tolling and rendered them untimely. See id. at *6-9, *12. Their motions were denied. Id. at *29-30. As to the challenged complaints' allegations of post-2008 lingering effects of the 2003-2008 conspiracy, the Tolling Decision found that "[n]o undue prejudice to defendants results from tolling plaintiffs' allegations of harm resulting from lingering effects of the conspiracy outside the class period: because the underlying conduct occurred during the class period, defendants have fair notice of their substance, and the number and identities of potential plaintiffs, from the earlier class proceedings." Id. at *24. Under this logic, "plaintiffs' allegations of harm resulting from lingering effects of the conspiracy outside the [MDL I] class period" of July 1, 2003 to December 31, 2008 stemming from defendants' conduct during the class period were tolled, id., but allegations of continuing conspiratorial conduct after December 31, 2008 were time-barred, see id. at *25.1

B. Discovery in MDL II

At the time of MDL II's creation in early 2020, plaintiffs represented to the JPML that "all the fact discovery as to Defendants ha[d] been done" in MDL I, Tr. of Proceedings ("JPML Hr'g Tr.") at 11:15-16, MDL II, MDL No. 2925 (J.P.M.L. Jan. 30, 2020), ECF No. 136, and that, as a result, any new fact discovery needed in MDL II would be "proportionately . . . much, much smaller than what's been done to date" and would be largely restricted to "things related to specific new Plaintiffs," id. at 11:20-22, in particular, "individualized damages discovery," Related Pls.' Joint Resp. Defs.' Mot. Transfer, Consol. &/or Coordination of Rail Freight Fuel Surcharge Antitrust Actions, MDL II, MDL No. 2925 (J.P.M.L. Dec. 12, 2019), ECF No. 87. The Panel thus reported that plaintiffs would "have access to the full discovery record developed in [MDL I], and that any remaining discovery in the new cases will be very limited and case-specific." Transfer Order at 2.

Plaintiffs made similar representations at the initial scheduling conference in MDL II, indicating that "all of the defendants' transaction data including for all shippers that were alleged to have been in the [putative MDL I] class" had been produced and subject to expert analysis in MDL I, Tr. of Video-Tel. Scheduling Conf. (May 22, 2020) at 53:19-22, ECF No. 110, and, as a result, the most burdensome and time-consuming discovery needed in MDL II was already complete, with the exception of "some particular additional transaction data" that might berequired, id. at 53:18-19. Based on the parties' discussion of their anticipated discovery needs at the scheduling conference, an initial Scheduling Order was entered, setting a deadline of October 1, 2021 for the completion of all fact discovery. Order (May 22, 2020) ("Scheduling Order") ¶ 5, ECF No. 102.

C. The Present Dispute

On February 2, 2021, two days before a previously scheduled status conference was to be held, plaintiffs submitted an email to the Court in accordance with the procedure for discovery disputes outlined in the Scheduling Order, see Scheduling Order at 3, advising that the parties had reached impasse about "the extent to which Defendants will produce . . ....

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