In Re: Rail Freight Fuel Surcharge Antitrust Litigation - Mdl 1869 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
In re RAIL FREIGHT FUEL SURCHARGE )
ANTITRUST LITIGATION )
_________________________________________ ) MDL Docket No. 1869
) Misc. No. 07-489 (PLF)
This document relates to: )
)
ALL CASES )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
The Court held closed hearings on October 2, 2014 and October 21, 2014 to
discuss plaintiffs’ expert’s potential conflicts of interest. The Court ordered the parties to submit
memoranda of law as to: (1) how this case should proceed, i.e. whether plaintiffs should be
permitted to submit a supplemental expert report; and (2) whether these proceedings should be
unsealed. On November 7, 2014, the Court ordered the unsealing of the transcripts of the prior
hearings, the parties’ briefs filed on October 31, 2014 and November 7, 2014, and all further
proceedings on this issue. A motions hearing and status conference is scheduled for November
13, 2014 at 9:30 AM.
After an initial review of the parties’ filings, the Court is deeply concerned that, in
light of recently discovered evidence, issues relating to Dr. Rausser’s credibility would
predominate the class certification hearing and be a time-consuming distraction from resolving
the ultimate issue of whether the class should be certified. Plaintiffs acknowledge that Dr.
Rausser’s undisclosed business relationships, implicating the issues in this case and kept secret
even from plaintiffs’ counsel as this case progressed, are a “serious matter concerning [his]
credibility.” Plaintiffs’ Memorandum of Law in Support of Motion for Leave to File
Supplemental Expert Report, at 1 [Dkt. No. 742-1]; see also Defendants’ Memorandum of Law
in Opposition to Plaintiffs’ Motion, at 1 [Dkt. No. 748] (“We do not doubt the seriousness of the
issues that have come to light . . . .”); id. at 8-12. While it is clearly not their preferred course of
action, plaintiffs’ counsel have suggested an alternative: “substitute a new economic expert for
Dr. Rausser.” Plaintiffs’ Memorandum of Law at 3 n.5. This alternative would require an
entirely new expert or experts on plaintiffs’ side, new economic analyses from defendants’
experts, and briefing the class certification issues ab initio. But it would avoid the side-show or
trial-within-a-trial that plaintiffs’ own filing suggests is virtually inevitable. See id. at 10-14; see
also Defendants’ Memorandum of Law at 6-16.
Accordingly, it is hereby
ORDERED that the parties should be prepared to discuss at the November 13,
2014 hearing whether the Court should set aside all prior briefing and expert reports on class
certification, treat all prior proceedings on class certification (including the appellate
proceedings) as a nullity, and set a new expert report, discovery, and briefing schedule for class
certification. The parties should also be prepared to discuss how, in the event the Court sets such
a new schedule, attorneys’ fees and costs should be borne; and it is
FURTHER ORDERED that plaintiffs’ Interim Co-Lead Class Counsel shall be
prepared to advise the Court whether members of the Executive Committee of Counsel have
been fully apprised and consulted about the serious matter presently before the Court.
SO ORDERED.
/s/______________________________
PAUL L. FRIEDMAN
DATE: November 12, 2014 United States District Judge
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