Union Pacific 2011 Annual Report Download - page 17

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including sites on the Superfund National Priorities List or state superfund lists. We cannot predict the
ultimate impact of these proceedings and suits because of the number of potentially responsible parties
involved, the degree of contamination by various wastes, the scarcity and quality of volumetric data
related to many of the sites, and the speculative nature of remediation costs.
Information concerning environmental claims and contingencies and estimated remediation costs is set
forth in Management’s Discussion and Analysis of Financial Condition and Results of Operations –
Critical Accounting Policies – Environmental, Item 7.
OTHER MATTERS
Antitrust Litigation – As we reported in our Quarterly Report on Form 10-Q for the quarter ended June
30, 2007, 20 small rail shippers (many of whom are represented by the same law firms) filed virtually
identical antitrust lawsuits in various federal district courts against the Railroad and four other Class I
railroads in the U.S (one railroad was eventually dropped from the lawsuit). The original plaintiff filed the
first of these claims in the U.S. District Court in New Jersey on May 14, 2007, and the additional plaintiffs
filed claims in district courts in various states, including Florida, Illinois, Alabama, Pennsylvania, and the
District of Columbia. These suits allege that the named railroads engaged in price-fixing by establishing
common fuel surcharges for certain rail traffic.
We received additional complaints following the initial claim, increasing the total number of complaints to
30. In addition to suits filed by direct purchasers of rail transportation, a few of the suits involved plaintiffs
alleging that they are or were indirect purchasers of rail transportation and seeking to represent a
purported class of indirect purchasers of rail transportation that paid fuel surcharges. These complaints
added allegations under state antitrust and consumer protection laws. On November 6, 2007, the Judicial
Panel on Multidistrict Litigation ordered that all of the rail fuel surcharge cases be transferred to Judge
Paul Friedman of the U.S. District Court in the District of Columbia for coordinated or consolidated pretrial
proceedings. Subsequently, the direct purchaser plaintiffs and the indirect purchaser plaintiffs filed
Consolidated Amended Class Action Complaints against UPRR and three other Class I railroads.
One additional shipper filed a separate antitrust suit during 2008. Subsequently, the shipper voluntarily
dismissed the action without prejudice.
On October 10, 2008, Judge Friedman heard oral arguments with respect to the defendant railroads’
motions to dismiss. In a ruling on November 7, 2008, Judge Friedman denied the motion with respect to
the direct purchasers’ complaint, and pretrial proceedings are underway in that case, the status of which
is described below. On December 31, 2008, Judge Friedman dismissed the complaints of the indirect
purchasers based upon state antitrust, consumer protection, and unjust enrichment laws. He also ruled,
however, that these plaintiffs could proceed with their claim for injunctive relief under the federal antitrust
laws, which is identical to a claim by the direct purchaser plaintiffs. The indirect purchasers appealed
Judge Friedman's ruling to the U.S. Court of Appeals for the District of Columbia. On April 16, 2010, the
U.S. Court of Appeals for the District of Columbia affirmed Judge Friedman’s ruling dismissing the indirect
purchasers’ claims based on various state laws. On December 13, 2010, the U.S. Supreme Court denied
the indirect purchaser plaintiffs’ Petition for Certiorari.
With respect to the direct purchasers’ complaint, Judge Friedman conducted a two-day hearing on
October 6 and 7, 2010, on the class certification issue and the railroad defendants’ motion to exclude
evidence of interline communications. On April 7, 2011, Judge Friedman issued an order deferring any
decision on class certification until the Supreme Court issued its decision in the Wal-Mart employment
discrimination case. The Supreme Court issued its decision on June 20, 2011, and Judge Friedman
required the parties to confer on the impact of the Wal-Mart decision. Plaintiffs and the defendant
railroads filed briefs in August and early September stating their views on the impact of the Wal-Mart case
on class certification in the fuel surcharge litigation. The decision from Judge Friedman regarding class
certification is still pending.
As we reported in our Current Report on Form 8-K, filed on June 10, 2011, the Railroad received a copy
of a complaint filed in the U.S. District Court for the District of Columbia on June 7, 2011, by Oxbow
Carbon & Minerals LLC and related entities (Oxbow). The complaint named the Railroad and one other
U.S. Class I Railroad as defendants and alleged that the named railroads engaged in price-fixing and
monopolistic practices in connection with fuel surcharge programs and pricing of shipments of certain
commodities, including coal and petroleum coke. The complaint seeks injunctive relief and payment of