Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co. (In re All Direct Purchaser Cases)
| Decision Date | 15 June 2021 |
| Docket Number | MDL Docket No. 1869,Civil Action No. 11-1049 (PLF),Miscellaneous No. 07-0489 (PLF) |
| Parties | In re RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION This document relates to: ALL DIRECT PURCHASER CASES OXBOW CARBON & MINERALS LLC, et al., Plaintiffs, v. UNION PACIFIC RAILROAD CO., et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Defendants in Rail Freight MDL No. 1869 and defendants in Oxbow move pursuant to 28 U.S.C. § 1292(b) to certify this Court's order on the meaning of 49 U.S.C. § 10706(a)(3)(B)(ii) for interlocutory appeal. Defendants' Motion for Certification Pursuant to 28 U.S.C. § 1292(b) and Supporting Statement of Points and Authorities ("Def. Mot.") [Dkt. No. 1010]; see also Defendants' Motion for Certification Pursuant to 28 U.S.C. § 1292(b) and Supporting Statement of Points and Authorities, Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., Civil Action No. 11-1049 [Dkt. No. 220].1 Plaintiffs in Rail Freight MDL No. 1869and plaintiffs in Oxbow oppose the motions. Plaintiffs' Opposition to Defendants' Motion for Certification Pursuant to 28 U.S.C. § 1292(b) ("Pl. Opp.") [Dkt. No. 1013]; see also Plaintiffs' Opposition to Defendants' Motion for Certification Pursuant to 28 U.S.C. § 1292(b), Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., Civil Action No. 11-1049 [Dkt. No. 223]. Upon consideration of the parties' written submissions, the relevant case law, relevant portions of the record in this case, and for the reasons discussed below, the Court will grant defendants' motions.2
These cases have been the subject of numerous prior opinions, which recount the factual and procedural history at length. 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 SurchargeAntitrust Litig. ("Rail Freight II"), 593 F. Supp. 2d 29, 32, 34-35 (D.D.C. 2008), aff'd sub nom. Fayus Enters. v. BNSF Ry. Co., 602 F.3d 444, 445-46, 454 (D.C. Cir. 2010); In re Rail Freight Fuel Surcharge Antitrust Litig. ("Rail Freight III"), 287 F.R.D. 1, 11-20 (D.D.C. 2012), vacated sub nom. In re Rail Freight Fuel Surcharge Antitrust Litig. - MDL No. 1869, 725 F.3d 244 (D.C. Cir. 2013); In re Rail Freight Fuel Surcharge Antitrust Litig. ("Rail Freight IV"), 292 F. Supp. 3d 14, 33-38 (D.D.C. 2017), aff'd sub nom. In re Rail Freight Fuel Surcharge Antitrust Litig. - MDL No. 1869, 934 F.3d 619 (D.C. Cir. 2019); In re Rail Freight Fuel Surcharge Antitrust Litig. ("Rail Freight V"), MDL No. 1869, 07-mc-0289, 2021 WL 663669, at *2-4 (D.D.C. Feb. 19, 2021); see also Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co. ("Oxbow I"), 926 F. Supp. 2d 36, 39-40 (D.D.C. 2013); Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co. ("Oxbow II"), 81 F. Supp. 3d 1, 5-6 (D.D.C. 2015).
These cases involve allegations of a conspiracy to fix prices in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. Plaintiffs in Rail Freight, purchasers of rail freight transportation services, allege that defendants, BNSF Railway Company, CSX Transportation, Inc., Norfolk Southern Railway Company, and Union Pacific Railroad Company, "engaged in a price-fixing conspiracy to coordinate their fuel surcharge programs as a means to impose supra-competitive total price increases on their shipping customers." Rail Freight IV, 292 F. Supp. 3d at 34. Similarly, plaintiffs in Oxbow allege that defendants Union Pacific Railroad Company and BNSF Railway Company conspired to "fix prices above competitive levels through a uniform fuel surcharge." Oxbow II, 81 F. Supp. 3d at 5. Many of the allegations in Oxbow are "virtually identical" to the allegations in Rail Freight. Id. at 5 n.3.
For over a decade, the parties in Rail Freight have been engaged in motions practice surrounding dismissal of the complaints and efforts to certify a class. See RailFreight V, 2021 WL 663669, at *2-3 (). In opposing class certification, defendants in Rail Freight sought to exclude from consideration evidence of interline-related communications, or communications concerning shared traffic, under 49 U.S.C. § 10706(a)(3)(B)(ii) ("Section 10706"). Def. Class Cert. Mem. Exclude at 1-28. Section 10706 provides that "evidence of a discussion or agreement between or among" rail carriers may be inadmissible in an action alleging antitrust violations, "if the discussion or agreement . . . concerned an interline movement of the rail carrier, and the discussion or agreement would not, considered by itself, violate the [antitrust] laws." 49 U.S.C. § 10706(a)(3)(B)(ii); Rail Freight V, 2021 WL 663669, at *2-3. The Court initially granted class certification without relying on the disputed evidence or ruling on defendants' Section 10706 motion. Rail Freight III, 287 F.R.D. at 10, 20, 74. Following remand from the D.C. Circuit, the Court denied class certification, again without relying on the disputed evidence or ruling on defendants' Section 10706 motion. Rail Freight IV, 292 F. Supp. 3d at 145.
After the Court denied class certification, the absent putative former class members filed individual actions in district courts across the country, which the Judicial Panel on Multidistrict Litigation consolidated into a separate proceeding before Chief Judge Howell, MDL No. 2952. Transfer Order at 1, In re Rail Freight Fuel Surcharge Antitrust Litig. (No. II), Miscellaneous No. 20-0008, MDL No. 2952 (D.D.C.) [Dkt. No. 1]. Aside from limited factual additions, the approximately ninety-three complaints that have now been transferred to MDL No. 2952 generally repeat the claims made by the putative class members in Rail Freight MDL No. 1869 before the undersigned. See In re Rail Freight Fuel Surcharge Antitrust Litig. (No. II), Miscellaneous No. 20-0008, MDL No. 2952, 2020 WL 5016922, at *5-6 (D.D.C. Aug. 25, 2020).
On December 19, 2019, this Court invited plaintiffs and defendants in Rail Freight MDL No. 1869 and Oxbow, as well as the new plaintiffs in MDL No. 2952 before Chief Judge Howell, to file additional memoranda addressing defendants' still-pending motions concerning Section 10706. Memorandum Opinion and Order [Dkt. No. 918] at 3. The Court also invited the United States to submit a Statement of Interest reflecting the views of the Department of Justice, the Federal Trade Commission, and the Surface Transportation Board. March 16, 2020 Order [Dkt. No. 947] at 2. On August 26, 2020, the Court heard oral arguments on the interpretation and application of Section 10706 from defendants, named plaintiffs in Rail Freight MDL No. 1869, new plaintiffs in MDL No. 2952, and the Department of Justice. Aug. 26, 2020 Minute Entry; see also Aug. 26, 2020 Hr'g Tr. at 1-5.
On February 19, 2021, the Court issued its opinion and order interpreting Section 10706 and denying defendants' motions to exclude interline-related communications. Rail Freight V, 2021 WL 663669; February 19, 2021 Order [Dkt. No. 1007]. The Court analyzed the text, history, and purpose of Section 10706 and reached conclusions regarding burdens of proof, the meaning of phrases in the statute, and the nature of the statute's bar on inferences. Rail Freight V, 2021 WL 663669, at *5-26. Most relevant here, the Court held that "to be protected by the statute, an interline movement must be an identifiable movement or movements with identifiable circumstances, such as a specific shipper, specific shipments, and specific destinations." Id., at *19. The Court also held that Section 10706 does not require wholesale admission or exclusion of entire items of evidence, and that the statutory protections may instead be implemented through "[r]edaction of the inadmissible portions," and "to the extent redaction is impracticable or inadvisable," then "limiting instructions may be employed." Id. at *17; see also id. at *23.
On March 5, 2021, defendants filed the present motions seeking certification for interlocutory appeal, arguing that two aspects of the Court's ruling in Rail Freight V qualify for immediate appeal under 28 U.S.C. § 1292(b) ("Section 1292(b)"): (1) "that the phrase 'an interline movement' in Section 10706 means that the statutory protections apply only to discussions or agreements about 'identifiable . . . movements with identifiable circumstances, such as a specific shipper, specific shipments, and specific destinations,'" and (2) that courts may implement the protections of Section 10706 through redactions and limiting instructions. Def. Mot. at 1-2 (quoting Rail Freight V, 2021 WL 663669, at *19). On March 19, 2021, plaintiffs filed their memoranda of law opposing interlocutory appeal, and on March 26, 2021, defendants filed their replies in support of certification. Pl. Opp.; Def. Reply.
Section 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b). This provision represents a departure from the "basic policy of postponing appellate review until after the entry of a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (citations omitted), and provides "an avenue for review" of certain nonfinal orders "in appropriate cases," Van Cauwenberghe v. Biard, 486 U.S. 517, 530 (1988).
Pursuant to Section 1292(b), the district court may certify an order for immediate appeal if it makes the following three findings: "(1) the order involves a controlling question of law; (2) a substantial ground for difference of opinion concerning the ruling exists; and (3) an immediate appeal would materially advance [the ultimate termination of] the litigation." Mo...
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