CSX loses bid in US appeals court to revive antitrust claims against Norfolk Southern
By Mike Scarcella
Aug 29 (Reuters) -Freight rail giant CSX CSX.O on Thursday failed to persuade a U.S. appeals court to revive a lawsuit accusing rival Norfolk Southern NSC.N of denying access to a major East Coast marine terminal, causing it hundreds of millions of dollars in damages.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Virginia said CSX’s allegations over the Norfolk International Terminal were untimely, falling outside the four-year window allowed for filing such claims under U.S. antitrust law.
The Richmond-based appeals court upheld a lower judge who ruled last year against CSX.
CSX, which had more than $14 billion in revenue last year, said in a statement on Thursday that it was “evaluating all options as we remain committed to gaining competitive access” at the terminal.
Norfolk Southern did not immediately respond to a request for comment.
International container ships use the Norfolk terminal to offload cargo onto trains and trucks that transport goods to inland destinations. Norfolk Southern owns tracks at the dock, but CSX does not.
CSX pays a “switch rate” for on-dock rail access, and it sued in 2018 claiming Norfolk Southern had conspired with Norfolk & Portsmouth Belt Line Railroad Co to set an excessive amount.
Norfolk Southern and CSX, among the largest U.S. freight rail carriers, compete to transport containers that arrive at U.S. ports.
The appeals court said CSX’s claims against Norfolk Southern and Norfolk & Portsmouth Belt Line dated to 2009, making the lawsuit untimely since it was filed years later.
CSX countered that the statute of limitation clock was ongoing, since the allegedly unlawful switch rate was in place daily and the company had endured “accumulating harm” over many years.
In its appeal, CSX argued that the lower court ruling effectively created an immunity shield that would block lawsuits “so long as monopolists and conspirators maintain an anticompetitive practice for four years without challenge.”
But the panel judges — Circuit Judges Albert Diaz, A. Marvin Quattlebaum Jr. and Allison Jones Rushing — were not persuaded.
Diaz, writing for the court, said the decision to keep the same allegedly unlawful switch rate in place for years “didn’t inflict new harm causing new injury to CSX within the limitations period.”
The case is CSX Transportation v Norfolk Southern Railway et al, 4th U.S. Circuit Court of Appeals, No. 23-1537.
For CSX: Charles Rothfeld of Mayer Brown, and Benjamin Hatch of McGuireWoods
For Norfolk Southern: Shay Dvoretzky of Skadden, Arps, Slate, Meagher & Flom
Read more:
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U.S. judge scraps CSX jury trial in rail antitrust case
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