By Andrew J. Trask, Of Counsel with Shook, Hardy & Bacon L.L.P. in its San Francisco, CA office.

Following on the heels of the U.S. Court of Appeals for the First Circuit’s groundbreaking opinion in In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018), the District of Columbia Circuit has also held that classes that contain definite numbers of non-injured members cannot be certified, because individual questions related to injury will predominate over common issues.

In re Rail Freight Fuel Surcharge Antitrust Litigation, 934 F.3d 619 (D.C. Cir. 2019), was part of a multi-district litigation in which the plaintiffs alleged that alleged that railway companies had engaged in a price-fixing conspiracy.  The alleged conspiracy concerned “fuel surcharges,” imposed above the base shipping price when the cost of fuel rises sufficiently high.