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After Twenty Years, In Re Rail Freight Ends With Summary Judgment For Defendant Rail Companies After Judge Finds Inadequate Support For Parallel Conduct Allegations
07/15/2025On June 24, 2025, the United States District Court for the District of Columbia granted defendant rail companies’ motion for summary judgment on a Sherman Act Section 1 claim. In a lengthy and sweeping multi-district litigation beginning in 2007, with 114 transferred cases, plaintiffs alleged a price-fixing conspiracy by rail companies. In re Rail Freight Surcharge Antitrust Litig. (No. I), MDL Dkt. No. 1869 (D.D.C. June 24, 2025). In a detailed, 166-page decision, Judge Beryl A. Howell found that plaintiffs were unable to create a disputed issue of material fact as to parallel conduct to establish their price-fixing claims.
The four defendant rail companies, CSX Transportation Inc., Norfolk Southern Railway Co., Union Pacific Railroad Co., and BNSF Railway Co., account for approximately 90% of freight rail revenue in the United States. Plaintiffs are shippers and direct and indirect purchasers of rail services who were charged surcharges for fuel costs. Plaintiffs alleged that defendants engaged in a price-fixing conspiracy between 2003 and 2008 by agreeing on a uniform fuel surcharge formula that inflated costs and did not reflect the actual costs of fuel consumption. Defendants each filed individual motions for summary judgment.
Plaintiffs alleged a price-fixing conspiracy based on circumstantial evidence, including a pattern of parallel pricing and policy conduct amongst defendants. Plaintiffs additionally pointed to a series of trade association meetings and interfirm communications where fuel surcharges were discussed, which (according to plaintiffs) gave defendants opportunities to conspire. Defendants rebutted the claims by pointing out that prices would move months apart from each other and were actually closer before the period of the alleged conspiracy. Plaintiffs alleged that in addition to parallel pricing changes, various plus factors existed, including pretextual justifications, common motive to conspire, and opportunity to conspire.
Where a plaintiff’s allegation of conspiracy lacks direct evidence, it must establish that alleged parallel conduct is supported by additional “plus factors” to sustain a claim. The Court was not persuaded that either parallel conduct or any plus factor could be established in this case.
Additionally, plaintiffs further failed to sufficiently rebut the plausibility of conscious parallelism, which is the possibility that any parallel conduct is better explained as efforts to obtain similar economic benefits as competitors without communication or agreement. The Court agreed that the characteristics of defendants’ actions were as consistent with conscious parallelism as with a conspiracy to fix prices, such that plaintiffs could not meet their summary judgment burden.
The Court ruled that plaintiffs’ allegations were insufficient to set out the parallel conduct needed to proceed to trial in a conspiracy case that lacks direct evidence. While plaintiffs may have developed a record that “on the surface, has some appeal[,]” upon closer examination “the evidence … does not support the conclusions [plaintiffs] propound.” In the end, the Court concluded that there was insufficient evidence of parallel conduct by defendants, as their fuel surcharge calculation mechanisms were functionally distinct and the several month periods between defendants’ surcharge policy changes did not support plaintiffs’ argument that defendants acted in concert. The Court further ruled that the other “plus factors” and circumstantial evidence in the record were insufficient to support a finding of conspiracy among defendants. Because plaintiffs’ record evidence was insufficient to meet their burden to overcome an inference of lawful conscious parallelism, defendants were entitled to summary judgment.
The Court’s grant of summary judgment comes after almost 20 years of litigation, encompassing over one hundred individual lawsuits, hundreds of plaintiffs, and efforts to obtain class certification. The results in this litigation illustrate that lengthy and complex cases can be resolved prior to trial where the record supports that determination.
