Class I freight railroad CSX (NYSE: CSX) has appealed to the U.S. Supreme Court to continue its antitrust lawsuit against Norfolk Southern.
Jacksonville, Florida-based CSX sued Atlanta-based Norfolk Southern in October 2018 claiming its competitor conspired with Norfolk & Portsmouth Belt Line Railroad Co. to set an excessive “switch rate” on dock access to the Port of Virginia. CSX said the switch rate of $210 per train car cost the company hundreds of millions of dollars since its implementation back in 2009.
The 4th U.S. Circuit Court of Appeals in Virginia ruled that CSX’s allegations were untimely because they were not within the four-year window allowed for filing U.S. antitrust law claims.
According to a petition filed by CSX in November and made public on Monday, CSX asked the Supreme Court to “grant review and set aside the Fourth Circuit Court’s decision.” CSX argued that because its business has undergone continual harm by the fees every day, it creates a “new harm” that renews the statute of limitations.
“Although the Court has not yet had occasion to address the doctrine in the precise factual circumstances presented by this case, it has stated the principle that controls: Injury caused by an antitrust violation beginning outside the limitations period but causing new harm in that period restarts the statute of limitations,” the CSX petition stated.
It is unclear when the Supreme Court may rule on the review request.
“CSX remains focused on its efforts to gain competitive access at NIT [Norfolk International Terminals], the Virginia Port Authority’s largest marine terminal, so that we can best serve our customers,” said CSX spokesperson Sheriee Bowman in an emailed statement to FreightWaves.
FreightWaves has reached out to Norfolk Southern for comment.