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Latham, Oxbow Spar Over DQ Bid In Rail Price-Fixing MDL

By Scott Flaherty; Law360;

New York (May 07, 2013, 5:29 PM ET) -- Latham & Watkins LLP and Oxbow Carbon & Mineral LLC traded blows in Washington federal court Monday as to whether the company deserves a chance to further reply to a bid to disqualify it from representing Union Pacific Railroad Co. in multidistrict price-fixing litigation.

Oxbow and Latham submitted filings after the court asked them to confer on the best way to resolve the mining company’s motion to disqualify Latham from representing Union Pacific in an MDL accusing several railroad companies of fixing shipping prices.

The two sides conferred but did not reach an agreement, according to their opposing filings, in which the law firm argued it deserved a chance to file a surreply and the mining company said that a hearing with live testimony was the best way forward.

Latham's filing said that after it responded to Oxbow’s initial briefing on the disqualification motion, the mining company “had to abandon substantially every argument it made.” In light of the purportedly changed Oxbow arguments, Latham contended that it should be able to file a surreply before the court considered Oxbow’s motion. Latham asked the court to allow it to file a 15-page surreply by May 17.

“While Oxbow is correct that as the moving party it would ordinarily get ‘the last word,’ we are in this position now only because Oxbow abused that right once already and abandoned the key arguments to which that right applies,” the firm said. “Latham is plainly entitled to a surreply opportunity, and that should be the end of the briefing.”

Oxbow submitted a filing of its own Monday, arguing that there was no need to allow a Latham surreply, because it would “unduly delay consideration” of the motion to disqualify the firm, and challenging Latham’s contention that it had raised any new arguments. Oxbow added that its proposal for going forward — a hearing that would include live testimony from ethics experts — “would give Latham the opportunity it needs to respond.”

“A surreply is neither necessary nor appropriate here,” Oxbow added. “Oxbow’s reply did not rely on ‘new facts’ or law unknown to Latham.”

Oxbow’s motion, which the company initially lodged in February, pointed to an alleged conflict of interest caused by Latham’s past work for the mining company. In a March 14 reply brief, Oxbow said that while it didn't "question Latham’s good faith or intentions," it still believed the firm should be disqualified because Oxbow is a member of a certified class alleging that the railroads used an arbitrary fuel surcharge to fix shipping rates.

Arguing against the disqualification, Latham has emphasized that it only represented Union Pacific in the class action, in which Oxbow is not a named plaintiff, and said it had declined to represent the railroad in a separate antitrust case that Oxbow brought against Union Pacific.

Attorneys for Oxbow and Latham declined to comment Tuesday.

Oxbow is represented by John R. Gerstein, Merril Hirsh and Fletcher Paddison of Troutman Sanders LLP.

Latham & Watkins LLP is represented by its own attorneys Daniel M. Wall and J. Scott Ballenger.

The MDL is In re: Rail Freight Fuel Surcharge Antitrust Litigation, case number 1:07-mc-00489, in the U.S. District Court for the District of Columbia.

--Additional reporting by Melissa Lipman. Editing by Eydie Cubarrubia.

For further information contact:

Corporate Communications & Community Relations
Oxbow Carbon LLC
1601 Forum Place, Suite 1400
West Palm Beach, FL 33401
(561) 907-5422

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