FMC's Request for Preliminary Injunction Against LA/LB Clean Trucks Program Denied (ATA Says No Effect on its Lawsuit)

The FMC had filed a motion for a preliminary injunction pursuant to the 1984 Shipping Act, as amended, to enjoin certain portions of the LA/LB CTP. The FMC alleged in its motion that the following aspects of the LA/LB CTP are anticompetitive: (i) employee-driver mandate; (ii) restriction of independent owner-operators; and (iii) truck purchase incentives, fees, etc.

The judge ruled that the FMC failed to demonstrate that the harm it alleged to competition in the drayage market is sufficiently likely, or sufficiently imminent, to establish the requisite irreparable harm to warrant a preliminary injunction. While the FMC provides evidence that some independent-owner-operators and some smaller licensed motor carriers may be adversely affected by the employee-mandate and the Clean Truck Fees (CTFs) and exemptions, the FMC has not established that these changes are likely to result in irreparable harm to overall competition in the drayage market or to the shipping public.

At LA/LB, the tariff requirements of the CTP, including the CTF, began on February 18, 2009. Under the CTP, cargo owners are required to pay a CTF for cargo moved by trucks that do not meet the requirements of the CTP. Cargo contained in a 20-foot container is subject to a $35 CTF and cargo contained in containers larger than 20 feet is required to pay a $70 CTF.

ATA Says Ruling Has No Effect on its Lawsuit Against LA/LB

A statement issued by the American Trucking Associations (ATA) states that the denial of the FMC's request for a preliminary injunction has no effect on the ATA's lawsuit against the LA/LB CTP Concession Plans because:

FMC's lawsuit seeks an injunction against the CTP and Concession Plans and ATA's lawsuit is only against the separate Concession Plan requirements. (ATA states that it supports the CTP and supports collection of the container fee.)

The two lawsuits are based on different law. FMC's is based on the Shipping Act. ATA's is based on the FAAA Act and on the Commerce Clause of the Constitution.

FMC argued that competition would be reduced because the LA/LB cooperated together to create the CTP; and the ATA has argued: (i) that the industry would be harmed and competition would be reduced because the Port of Los Angeles bans independent owner operators and because both ports have many irrelevant, cost-raising requirements that will do nothing to clean the air, and (ii) that the Concession Plans are an illegal and unconstitutional intrusion into interstate transportation and commerce.

(On March 20, 2009, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the American Trucking Associations (ATA) in its lawsuit seeking a preliminary injunction against the LA/LB CTP Concession Plans. ATA states that the three-judge panel ruled unanimously to remand the case to the U.S. District Court and indicated that the judge should grant the ATA a preliminary injunction against all or part of the Concession Plans.)

(See ITT's Online Archives or 11/12/08 news, 08111220, for BP summary of the FMC's motion, with links to other relevant notices.

See ITT's Online Archives or 11/18/08 news, 08111820, for BP summary of a November 2008 FMC meeting on the preliminary injunction.

See ITT's Online Archives or 02/18/09 news, 09021810, for BP summary on the collection of the CTF beginning February 18, 2009.

See ITT's Online Archives or 03/23/09 news, 09032305, for BP summary of Court of Appeals ruling in favor of the ATA.)

Opinion (Civil Case No. 08-1895) available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1895-56.

Port of Long Beach press release available at http://www.polb.com/news/displaynews.asp?NewsID=540&targetid=.1

Port of Los Angeles press release available at http://www.portoflosangeles.org/newsroom/2009_releases/news_041509_fmc.asp.

ATA statement (dated 04/17/09) available at http://www.truckline.com/pages/article.aspx?id=511%2F{8E1C7279-ED27-4C03-B189-CEEEE26BBB12}.