Centuries after the invention of the railroad, they remain critical arteries for the movement of goods and materials across the United States, even as their dominance has been challenged by automobiles, aircraft, and cargo ships. Railroads returned to the spotlight after the high-profile derailment of a Norfolk Southern train in East Palestine, Ohio earlier this year resulted in the discharge of pollutants and a spike in litigation.
A survey of recent federal litigation against large railway companies – BNSF, Union Pacific, CSX, Norfolk Southern, Canadian Pacific Kansas City Limited, and Canadian National – reveals that many of the cases arise under statutes specifically designed to regulate the railroad industry. Many of the lawsuits concern personal injuries, either by railroad employees or those affected by derailments. The other major source of litigation are antitrust lawsuits.
The Federal Employers Liability Act is most often cited in lawsuits targeting the largest railroads. The 1908 statute was designed to protect railroad workers. Over 200 such cases were brought against major railroads, with 120 filed against BNSF alone. CSX faced 59 of the cases, while Union Pacific, CN, and Norfolk Southern received less than a dozen each. The cases are brought by individuals and concern personal injuries, paralleling litigation against passenger carrier Amtrak.
The rail freight industry is no stranger to antitrust cases as well, the second-most frequently filed case type since 2019. Among others, four railroad companies are subject to a multi-district litigation brought by thousands of shippers against CSX, BNSF, Union Pacific, and Norfolk Southern, alleging the companies conspired to fix rail fuel surcharges. The MDL was opened in 2007 and remains pending.
Railroad companies received a spike of antitrust cases in late 2019 and early 2020, with 52 cases filed in September 2019 and another 71 filed in February 2020. These cases are largely related to the aforementioned fuel surcharge allegations.
Other top case types for the industry include personal injury, employment, and torts to land, as well as the Railway Labor Act, another industry-specific statute that governs labor relations.
Who Represents Who?
CSX, which services the country east of the Mississippi River, is primarily represented in recent years by Crowell & Moring,; Gunster, Yoakley & Stewart; and McGuieWoods, among others.
Union Pacific is dominant west of the Mississippi. They have been represented in recent years by Jones Day, Latham & Watkins, and Yetter Coleman.
Norfolk Southern is facing a recent spike in personal injury cases in connection with the East Palestine derailment, with 20 such suits filed in March alone. This includes a lawsuit filed by the federal government. They are represented in that case by McMahon DeGulis. Other historical counsel representing the railroad includes Skadden, Arps, Slate, Meagher & Flom and Gallivan, White & Boyd.