UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

 

)
ln re RAIL FREIGHT FUEL SURCI-iARGE )
ANTITRUST LITIGATION )
) MDL Docket No, 1869
) Miscellaneous No. 07»0489 (PLF)
This document relates to: )
)
ALL DIRECT PURCHASER CASES )
)
ORDER

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

l. T he direct purchaser plaintiffs’ motion for class certification [Dkt. 337] is
DENIED.

2. The Court concludes that plaintiffs have failed to estabiish by a preponderance
of the evidence that all of the requirements of Rule 23 of the Federal Rules of Civil Procedure
have been satisfied Specifically, plaintiffs have failed to establish that “questions of law or fact
common to class members predominate over any questions affecting only individual meinbers”
under Rule 23(b)(3). FED. R. Cl\/. P. 23(b)(3). While the documentary evidence is strong
evidence of conspiracy and class»wide injury to so-called carload ti‘aftic, the damages regression
model of plaintiffs’ lead expert is flawed for three reasons: (l) a large portion of the class traffic
reliected in his damages model Was intermodal traffic - not carload traffic - that Was subject
to competitiver negotiated fuel surcharge formulas estabiished during the pre-class period and
which never changed; (2) his damages model finds unexpiainable overcharges With respect to

legacy shippers »-»» the very concern raised by the D.C. Circuit in its opinion in this case‘, and

(3) there are too many uninjured shippers in the class who cannot be identified or sufficiently
explained to satisfy the “all or virtually all” standard for predominance under Rule 23 (b)(3) and
the established case lavv.

3. Under Rule 23(f) of the Federai Rules of Civil Procedure, the court of appeals
may permit an appeal from this Order denying 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. CI'\/. P.
23(f). “An appeal does not stay proceedings in the district court unless the district judge or the
court of appeals so orders.” ld. By November l(), 2017, the parties shall meet and confer and
shall tile a joint notice with the Court regarding how they Wish to proceed in this case; the parties
shall address (a) vvhether plaintiffs have filed a petition to appeal With the Clerk of the D.C.
Circuit, and if so, (b) Whether there are any outstanding issues that must be addressed by this
Court.

4. As the parties are aware, the Opinion accompanying this Order temporarily has
been issued under seal in its entirety in view of the possibility that the Couit has referenced
“Confidential” or “Highly Contidential _ Attorneys’ Eyes Only” material, as described in the
Protective Order issued in this case. §§e Protective Order (Jan. 29, 2009) il‘|j l.3, 1.4 (Facciola,
l\/lag. J.) [Dkt. 195]. That Opinion, however, Will not remain under seal. By November lO,
2017, the parties shall meet and confer and shall file a joint report showing cause Why the
Opinion issued under seal this same day should not be published in full Without redactions on the
public docket crisis court

if either party believes that some passage(s) in the Court’s Opinion should be
redacted, they must specify in the joint report Which passage(s) and must specifically state the

cause`l"or each redaction. In making any such request, the parties are reminded that the courts are

not intended to be, nor should they be, secretive places for_the resolution of secret disputes §§g,
e.g., l\/letlife, inc. v. Fin. Stabilitv Oversi;;ht Council, 865 F.3d 661, 665 (D.C. Cir. 2017)
(quoting United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980) (“[T]here is a ‘strong
presumption in favor of` public access to judicial proceedings.”’); Hardawav v. D.C. I~Ious. Auth.
843 F.Bd 973, 980 (D.C. Cir. 2016). The parties are also reminded to consider what Was
previousiy published in the redacted version of the Court’s initial class certification opinion §
Rail Freipht Iii, 287 F.R.D. l (D.D.C. 2012). Accordingly, any redactions shall be made solely
to the extent necessary to preserve the confidentiaiity of the relevant information in accordance

With the terms of the Protective Order issued in this case. w Protective Order il‘t[ 1.3, 1.4.

PAUL L. FRiEnMAN *
United States District Judge

SO ORDERED.

DATE: /O//O/{;?._

