1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION (NO. II)

This document relates to:
Civ. No. 20

- 00790 (BAH)
NIPPON YUSEN KABUSHIKI KAISHA and NYK LINE (NORTH AMERICA) INC. ,

Plaintiff s ,

v. BNSF RAILWAY COMPANY and UNION PACIFIC RAILROAD COMPANY ,

Defendant s . MDL No. 2925 Misc. No. 20

- 00008 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM AND ORDER
P laintiffs Nippon Yusen Kabushiki Kaisha and NYK Line (North America) Inc. (together, “NYK plaintiffs”) have moved for clarification or reconsideration of this Court’s unambiguous conclusion in its decision on defendants’ Motion to Dismiss Plaintiffs’ Compl aint or, in the Alternative, Motion to Strike , ECF No. 196 , that “NYK plaintiffs’ allegations about the 2009

– 2013 contract [between NYK plaintiffs and defendants] are time

- barred

. ” In re Rail Freight Fuel Surcharge Antitrust Litig. (No. II) (“ Dismissal Decision ”) , No. 20

- mc - 00008 (BAH), MDL No. 2925 , 2020 WL 5016922, at * 27 (D.D.C. Aug. 25, 2020); see NYK Pls.’ Mot

. Clarification or, in the Alternative, Recons

. (“Pls.’ Mot.”), at 1 , ECF No. 414 . In their view, this2

conclusion did not “consid er[] and reject[] NYK’s lingering effects theory with respect to post

2008 contracts,” Pls.’ Mot. at 4; NYK Pls.’ Reply Supp. Mot. Clarification or, in the Alternative, Recons. (“Pls.’ Reply”) at 2

– 3 , ECF No. 42 6, presumably so that discovery on such a lingering effects theory may proceed

. “The general purpose of a motion for clarification is to explain or clarify somethi ng ambiguous or vague, not to alter or amend.” United States v. Philip Morris USA , Inc. , 793 F. Supp. 2d 164, 168 (D.D.C. 2011) (internal quotation omitted). Though NYK plaintiffs style their motion as a request for clarification, they in fact ask the Cou rt to revisit the straight

- forward conclusion that their allegations regarding con tracts entered after 2008 are time

- barred. As defendants observe , the Dismissal Decision noted that “ NYK plaintiffs frame [the ir allegation related to the 2009 contract] a s just another part of its post

- 2008 damages claim, such that any requisite discovery and expanded liability do not defeat tolling. ” Defs. BNSF Ry. Co. & Union Pac. R.R. Co.’s Opp ’ n NYK Pls.’ Mot. Clarification or, in the Alternative, Recons. (“Defs.’ Opp’n”) at 3 , ECF No. 424 (emphasis omitted) (quoting Dismissal Decision , 2020 WL 5016922,
at *27 )

. Th is Decision explicitly rejected NYK plaintiffs’ efforts to construe their allegation that the 2 009 contract included “the same [inflated rate

- based fuel surcharge] argument which applied in the contract s during 2000 to 2008” as a “lingering effects” allegation. Dismissal
Decision , 2020 WL 5016922, at *27 (alteration in original) (internal quotation omitted). Further, contrary to NYK plaintiffs’ characterization, see Pls.’ Reply at 3

– 4, the Court plainly state d that this allegation would impose an impermissible burden to defendants as a result of both the “unfair surprise [to] defendants” that would result from allowing NYK plaintiffs to pursue allegations stemming from a contract entered after December 31, 2008 and the “ new discovery3

[that] would be required.” Dismissal Decision , 2020 WL 5016922 , at *27 . No ambiguity

nece ssitating any clarification exists. NYK plaintiffs’ alternative motion for reconsideration fares no better. Motions to reconsider interlocutory orders may be granted before the entry of a final judgment, pursuant to Fed eral R ule of Civ il P rocedure 54(b), “as justice requires.” Cobell v. Jewell , 802 F.3d 12, 25 (D.C. Cir. 2015) (quoting Greene v. Union Mut. Life Ins. Co. of Am. , 764 F.2d 19, 22 (1st Cir. 1985) (Breyer, J.)); see also Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc. , 630 F.3d 217, 227 (D.C. Cir. 2011) ( noting that Ru le 54(b) “ recognizes [a court's] inherent power to reconsider a n interlocutory order ‘ as justice requires ’ ” ( quoting Greene , 764 F.2d at 22 )). Several circumstances have been identified as warrant ing Rule 54(b ) reconsideration , including

“ where the court has patently misunderstood a party, made a decision outside the adversarial issues presented by the parties, erred not in reasoning but in apprehension of the relevant issues, or failed to consider a significant change in the law or facts since its decision. ” Hispanic Affs. Project v. Perez , 319 F.R.D. 3, 6 (D.D.C. 2016) (quoting Liff v. Off. of the Inspector Gen. for the U.S. Dep ’ t of Labor , No. 14

- cv - 1162 (JEB), 2016 WL 6584473, at *4 (D. D.C. Nov. 7, 2016)); see also Cobell v. Norton , 224 F.R.D. 266, 272 (D.D.C. 2004)). Although this list may not exhaust the potential justifications for reconsideration , exercise of the discretion granted under Rule 54(b ) to revisit earlier ru lings in the same case is “ subject to the caveat that where litigants have once battled for the court ’ s decision, they should neither be required, nor without good reason permitted, to battle for it again. ” U.S. Tobacco Coop. Inc. v. Big S. Wholesale of V a., LLC , 899 F.3d 236, 257 (4th Cir. 2018) (quoting Off. Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP , 322 F.3d 147, 167 (2d Cir. 2003)); see also Nat. Res. Def. Council, Inc. v. EPA , Civ. No. 16

- 1861 (JDB), 2020 WL 5632410, at *3 (D.D.C. Sept. 21, 2020)4

(same); Jordan v. U.S. Dep ’ t of Justice , Civ. No. 17

- 2702 (RC), 2019 WL 2028399, at *2 (D.D.C. May 8, 2019) (same). Instead of demonstrating any of the recognized circumstances when justice may require reconsideration, NYK plaintiffs raise two arguments already addressed at length in the Dismissal
Decision , in an effort to compel a conclusion more to their liking. Firs t, they argue that no discovery of post

- class

- period conduct , beyond that allowed by the Dismissal Decision ’s provision for certain lingering effects damages , would be required to pursue their allegation that “supracompetitive pricing persisted in [the] 2009 contract . . . based on Defendant s ’ conspiratorial conduct ending in 2008.” Pls.’ Mot. at 5 ; see also Pls .’ Reply at 5

– 6 . As defendants point out, see Defs

. ’ Opp’n at 6, and as explained in the Dismissal Decision , 2020 WL 5016922 , at * 27 , at a minimum, post

- 2008 discovery related to defendants’ conduct and motivations in negotiating the 2009 contract , not just the allegedly supracompetitive prices paid by NYK plaintiffs over the post

- 2008 life of that contract, would be required to liti gate NYK plaintiffs’ allegation. Even if this additional discovery did not independently impose burdens on defendants, the “unfair surprise” to defendants of allegations related to the 2009 contract remains. Second, NYK plaintiffs argue that there is no “principled legal or economic basis for distinguishing lingering effects damages flowing from contracts ente red into during, but extend ing beyond, a conspiracy period (which this Court held are permissible) from those resulting from contracts concluded im mediately after a conspiracy’s termination.” Pls.’ Mot. at 6; see also Pls.’ Reply at 6

– 8. In the context of this multidistrict litigation and specifically of NYK plaintiffs’ complaint, which consists entirely of claims brought outside the Clayton Act’s statute of limitation s, 15 U.S.C. § 15b, by former putative class members in In re Rail Freight5

Fuel Surcharge Antitrust Litigation (“ MDL I ”) , No. 07

- mc - 00489

- PLF

- GMH, MDL No. 1869 (D.D.C.), the distinction is apparent. As the Dismissal Decision explain ed in detail, the claims of former putative class members in MDL I , including NYK plaintiffs, a re untimely unless tolled under the exception to the statute of limitations set forth in American Pipe & Construction Co. v. Utah , 414 U.S. 538 (1974)

. American P ipe tolls the claims of former putative class members that are “ predicated on the same acts ” as the conduct challenged in the original class action, “such that ‘there can be no doubt that the defendants have received sufficient notice of the contours of potential claims.’” Dismissal Decision , 2020 WL 5016922 , at *11 (quoting McCarthy v. Kleindienst , 562 F.2d 1269, 1275 (D.C. Cir. 1977))

. The putative class in MDL I alleged a 2003

– 2008 class period, asserting that supracompetitive fuel surcharge formulas were inserted in contracts entered during that time. Id.
at *3

– 4 . Unlike allegations concerning supracompetitive fuel surcharges paid under contracts entered between 2003 and 2008, which were litigated by the putative class in MDL I , as the Dismissal Decision explained, allegations concerning a supracompetitive fuel surcharge formula in a 2009 contract do not satisfy the criteria for tolling because they are “factually separate from the 2003

– 2008 conspiracy pursued by the putative class” in MDL I and defendants therefore did not have fair notice that the contract was at issue. Id. at *27 . This reasoning also distinguishes NYK plaintiffs’ all egations related to the 2009 contract from allegations brought by other plaintiffs related to multiyear contracts entered during the class period, see Pls.’ Reply at 4, which , though they may have resulted in lingerin g effects damages after the class peri od ended , were fairly encompassed by the putative MDL I class’s claims , see Dismissal Decision , 2020 WL 5016922 , at *27

. Finally, NYK plaintiffs’ reliance on In re Domestic Drywall Litigation , No. 15

- cv - 1712, M D L No. 24 37, 2016 WL 3453147 (E.D. Pa. June 22, 2016), is misplaced. See6

Pls.’ Mot. at 6

– 7; Pls.’ Reply at 6

– 7. That case did not concern American Pipe tolling, and stands only for the limited proposition that the time period for damages calculation s may extend past the alleged conspiracy period. In re Domestic Drywall L itig. , 2016 WL 3453147, at *3; see also Defs.’ Opp’n at 7

– 8. None of this analysis breaks new ground, because NYK plaintiffs simply recycle arguments already rejected in an att empt to relitigate the merits of the determination made in the Dismissal Decision . Their Motion for Clarification or, in the Alternative, for Reconsideration, is therefore DENIED

. SO ORDERED.

Date: October 2 2 , 2020

__________________________ BERYL A. HOWELL Chief Judge