News & Events

Litigation Partner John Terzaken was quoted in a Law360 article titled, “A 40-Year-Old Law, 4 Rail Giants & 1 Big Antitrust Question.” The article analyzed In re: Rail Freight Fuel Surcharge Antitrust Litigation, a case in which the DOJ has recently been asked to weigh in, and the application of Section 10706 of the U.S. Code, which keeps certain government-approved rate-setting agreements between rail carriers from being used as evidence against them in an antitrust case. Whether Section 10706 can exclude evidence of a fuel surcharge price-fixing conspiracy could play a crucial role in the case between shippers and rail companies, a question that has arisen in other recent court considerations of the kind of protections various industries have from federal antitrust litigation and in a larger discussion surrounding antitrust immunities.  

John noted that courts are taking “a far more thoughtful approach” to the scope and necessity of antitrust immunities. To the extent courts find those immunities necessary, John added they are also mulling “whether or not [those immunities] should be very narrowly tailored so as not to protect what would otherwise be unlawful behavior.”

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